No. 69

 

                                                     VOTES AND PROCEEDINGS

 

                                                                      OF THE

 

                                                         HOUSE OF ASSEMBLY

 

                                                                                                                                  ____________

 

 

                                                                           WEDNESDAY 26 JULY 1995

 

 

 1         Meeting of House

                  The House met pursuant to adjournment.  The Speaker (Hon. G.M. Gunn) took the Chair and read prayers.

 

2         Message from the Governor

                  The following Message from the Governor was received and read:

 

            Assent to Bill                                                                                                                                                                                    Message No. 28

                  The Governor informs the House of Assembly that, in the name and on behalf of Her Majesty The Queen, the following Act has been assented to during the present session, viz. -

                  No. 50 of 1995 - Public Trustee Act 1995

                  Government House, 26 July 1995                                                                                                                 R.F. Mitchell, GOVERNOR

 

3         Conference - South Australian Health Services  Bill

                  The Deputy Premier (Hon. S.J. Baker) moved - That the sitting of the House be continued during the Conference with the Legislative Council on the South Australian Health Services Bill.

                  Question put and passed.

 

4         Petitions Nos 266 to 282

                  The Clerk announced that the following Members had lodged Petitions for presentation:

 

                  266 to 269 Premier (Hon. D.C. Brown), Deputy Premier (Hon. S.J. Baker), Mr Brindal and Mr Meier, from 142 residents of South Australia, requesting that the House oppose any measure to legislate for euthanasia.

 

                  270 to 278 Deputy Premier, Mr Andrew, Mr Becker, Mr Leggett, Mr  Meier, Mrs Rosenberg, Mr Rossi, Mr Scalzi and Mr Venning, from 579 residents of South Australia, requesting that the House uphold and strengthen existing laws relating to prostitution.

 

                  279   Minister for Tourism (Hon. G.A. Ingerson), from 80 residents of South Australia, urging the House to ensure that effective legislation is enacted to protect urban trees and/or bushland from destruction.

 

                  280  Mr Becker, from 322 residents of South Australia, requesting that the House support the application to establish a X-Lotto Agency at the Thebarton Foodland.

 

                  281   Mr Brindal, from 18 residents of South Australia, requesting that the House amend existing laws relating to prostitution offences.

 

                  282  Mrs Greig, from 26 residents of South Australia, requesting that the House pass legislation to ensure that the Internet is not used to transmit obscene or indecent material.

 

5         Papers

                  The following Papers were tabled:

 

                  By the Minister for Housing, Urban Development and Local Government Relations     (Hon. J.K.G. Oswald)                      

                              District Council of Mallala - By-Laws -

                                          No. 1 - Permits and Penalties

                                          No. 2 - Moveable Signs

                                          No. 3 - Streets and Public Places

                                          No. 4 - Garbage Removal

                                          No. 5 - Foreshore

                                          No. 6 - Fire Prevention

                                          No. 7 - Caravans and Camping

                                          No. 9 - Bees.

 

6         Public Works Committee - Report - Mount Gambier TAFE Campus Redevelopment

                  Mr Ashenden brought up the Eleventh Report of the Committee.

                  Report received.

                  Ordered to be printed (Paper No. 213).

 

7          Questions

                  Questions without notice were asked.

                  Ordered - That the period for asking questions without notice be extended by one minute.

                  Questions without notice resumed.

 

8         Grievance debate

                  The Speaker proposed - That the House note grievances.

                  Debate ensued.

                  Question put and passed.

 

9         Legislative Review Committee - Reports - Twenty-Ninth and Minutes of Evidence and Thirtieth

                  Mr Cummins brought up the Twenty-Ninth Report of the Committee.

                  Report received.

 

                  Mr Cummins brought up the Minutes of Evidence given before the Committee on the Development Act 1993 - Regulations - Simplified Safety Provisions for Buildings.

                  Minutes received.

                 

                  Mr Cummins brought up the Thirtieth Report of the Committee.

                  Report received.

 


10       Message from the Legislative Council

                  The following Message from the Legislative Council was received and read:

 

            Residential Tenancies Bill                                                                                                                                                                 Message No. 164

                  MR SPEAKER - The Legislative Council has agreed to Amendments Nos 3, 47, 49 to 53, 55, 58 to 60, 64, 70, 72 to 74 and 77 made by the House of Assembly in the Residential Tenancies Bill without any amendment, has agreed to Amendments Nos 45 and 46 with additional amendments and has agreed to Amendments Nos 43, 56, 57 and 65 with amendments. The Legislative Council has disagreed to Amendments Nos 1, 2, 4 to 42, 44, 48, 54, 61 to 63, 66 to 69, 71, 75, 76, 78, 79 and 80 for the reason indicated in the annexed Schedule, but has made amendments in lieu of Amendments Nos 1, 5 to 11, 15, 17 to 39, 44, 48, 54, 61, 66, 67, 78 and 80. The Legislative Council desires the concurrence of the House of Assembly to the amendments. The Bill is returned herewith.

                  Legislative Council, 25 July 1995                                                                                                                H.P.K. Dunn, PRESIDENT

 

Schedule of the amendments made by the House of Assembly and agreed to by the Legislative Council with additional amendments

 

                  House of Assembly’s Amendments Nos. 45 and 46 -

                  No. 45        Clause 67, page 27, lines 6 to 13 - Leave out paragraphs (a), (b)  and (c)  and insert -

                                          ‘(a)    the tenancy is for a fixed term and the fixed term comes to an end; or

                                           (b)    the landlord or the tenant terminates the tenancy by notice of termination given to the other (as required under this Act); or

                                           (c)    the Tribunal terminates the tenancy; or.’

                  No. 46        Clause 67, page 27, lines 22 to 26 - Leave out subclauses (2) and (3).

 

                  Legislative Council’s additional Amendment -

                  Clause 3, page 3, after line 28 - Insert new subclauses as follow:

                  “(2)   If this Act provides for something to be done within a specified period from a particular day, the period will be taken not to include the particular day.

                   (3)                If this Act provides that action may be taken after the expiration of a specified period of days, the period will be taken to be a period of clear days.”

 

Schedule of the amendments made by the House of Assembly and agreed to

by the Legislative Council with amendments

 

                  House of Assembly’s Amendment No. 43 -

                  ‘(8A)            If -

                                          (a)     security for the performance of obligations under a residential tenancy agreement is provided by a third party prescribed by the regulations in circumstances prescribed by the regulations; and

                                          (b)     the landlord makes application to the Commissioner for the payment of the whole, or a specified part, of the amount payable under the security,

                                          then -

                                          (c)     if the application is made with the consent of the third party - the Commissioner must pay out the amount as specified in the application;

                                          (d)     in any other case - the Commissioner must give the third party and, if the tenant is still in possession of the premises, the tenant, written notice of the application (in a form the Commissioner considers appropriate) and -

                                                       (i)     if the Commissioner does not receive a written  notice of dispute from the party or parties to whom the notice of the application was given within seven days after the date on which the original notice is given - the Commissioner may pay out the amount as proposed in the application;

                                                      (ii)    in any other case - the Commissioner must refer the matter to the Tribunal for determination.


                  (8B) If a payment is made under subsection (8A), the third party must reimburse the Fund to the extent of the payment.’

 

                  Legislative Council’s Amendment thereto -

                  New subclause (8A)(d)(i) - Leave out “seven days” and insert “ten days”.

 

                  House of Assembly’s Amendment No. 56 -

                  Clauses 76, page 30, lines 15 to 37 and page 31, lines 1 to 11 - Leave out the clause and insert new clause 76 as follows:

 

            76. ‘Termination on application by landlord  (1) The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for possession of the premises if satisfied that -

                  (a)     the tenant has committed a breach of the residential tenancy agreement; and

                  (b)     the breach is sufficiently serious to justify termination of the tenancy1.

                                    1A tenancy may be terminated by a landlord by notice after a notice has been given allowing the tenant an opportunity to remedy the breach (See section 69).  This alternative procedure may be appropriate if (for example) the breach is not capable of remedy.

                  (2)     The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for immediate possession of the premises if the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit -

                              (a)     serious damage to the premises; or

                              (b)     personal injury to -

                                           (i)     the landlord or the landlord’s agent; or

                                          (ii)    a person in the vicinity of the premises.’

 

                  Legislative Council’s Amendment thereto -

                  ‘New section 76(1) - Note - Leave out the first sentence in this note and substitute - “A tenancy may be terminated by a notice under section 69 if the tenant fails to remedy a breach after being required to do so by the landlord.”’

 

                  House of Assembly’s Amendment No. 57 -

                  Clause 77, page 31, lines 12 to 37 - Leave out the clause and insert new clause 77 as follows:

                  77. 'Termination on application by tenant  The Tribunal may, on application by a tenant, terminate a residential tenancy and make an order for possession of the premises if satisfied that -

                  (a)     the landlord has committed a breach of the residential tenancy agreement; and

                  (b)     the breach is sufficiently serious to justify termination of the tenancy1.

                                   1. A tenancy may be terminated by a tenant by notice after a notice has been given allowing the landlord an opportunity to remedy the breach (See section 74A).  This alternative procedure may be appropriate if (for example) the breach is not capable of remedy.’

 

                  Legislative Council’s Amendment thereto -

                  ‘New section 77(1) - Note - Leave out the first sentence in this note and substitute - “A tenancy may be terminated by a notice under section 74A if the landlord fails to remedy a breach after being required to do so by the tenant.”’

 

                  House of Assembly’s Amendment No. 65 -

                  Clause 84, page 33, lines 31 to 33 and page 34, lines 1 and 2 - Leave out the clause and insert new clause 84 as follows:

            84. 'Order for possession  (1)  If a residential tenancy -

                  (a)     is terminated by notice of termination under this Act; or

                  (b)     is for a fixed term which expires and is not renewed,

                  the landlord may apply to the Tribunal for an order for possession of the premises.

                  (2)     If the Tribunal is satisfied that the tenancy has terminated or has been terminated, the Tribunal may make an order for possession of the premises.

                  (3)     The order for possession will take effect on a date specified by the Tribunal in the order, being a date not more that seven days after the date of the order unless the operation of the order for possession is suspended1.

                              1. See subsection (4).

                  (4)     However, if the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, is satisfied by the tenant that the grant of an order for immediate possession of the premises would cause severe hardship to the tenant, the Tribunal may -

                              (a)     suspend the operation of the order for possession for up to 90 days; and

                              (b)     extend the operation of the residential tenancy agreement until the landlord obtains vacant possession of the premises from the tenant.

                                          °          In extending the operation of a residential tenancy agreement, the Tribunal may make modifications to the agreement that it considers appropriate (but the modifications cannot reduce the tenant’s financial obligations under the agreement).

                  (5)     If the tenant fails to comply with an order for possession, the landlord is entitled to compensation for any loss caused by that failure.

                  (6)     The Tribunal may, on application by the landlord, order the tenant to pay to the landlord compensation to which the landlord is entitled under subsection (5).’

 

                  Legislative Council’s Amendment thereto -

                  New section 84(1)(a) - After “this Act” insert “or, in the case of a tenancy under which the South Australian Housing Trust is landlord, under the residential tenancy agreement”.

 

Schedule of the amendments made by the House of Assembly, disagreed to by the

Legislative Council and alternative amendments made

 

                  House of Assembly’s Amendment No. 1 -

                  Long title, page 1, line 7 - After “1978” insert “and the Residential Tenancies (Housing Trust) Amendment Act 1993;  to make related amendments to the Courts Administration Act 1993  and to the Retirement Villages Act 1987 ”.

 

                  Legislative Council’s alternative Amendment -

                  Long title, page 1, line 7 - After “Residential Tenancies Act 1978”  insert “and the Residential Tenancies (Housing Trust) Amendment Act 1993; to make related amendments to the Retirement Villages Act 1987 ”.

 

                  House of Assembly’s Amendments Nos. 5 and 6 -

                  No. 5            Clause 5, page 5, after line 5 - Insert new paragraph as follows:

                                          (ga) an agreement under which the South Australian Housing Trust confers a right to occupy premises for the purposes of residence1; or

                                                                                    1 However, the Tribunal has jurisdiction to hear and determine claims arising under South Australian Housing Trust tenancies - see section 13.’

                  No. 6            Clause 5, page 5, lines 7 to 14 - Leave out subclauses (2) and (3).

 

                  Legislative Council’s alternative Amendment -

                  Clause 5, page 5, lines 7 to 14 - Leave out subclauses (2) and (3) and insert new subclause as follows:

                  “(2)   The following provisions of this Act (and only those provisions) apply to residential tenancy agreements under which the South Australian Housing Trust is the landlord, to residential tenancies arising under those agreements and to related tenancy disputes -

                                          (a)     Part 3 (Residential Tenancies Tribunal);

                                          (b)     Section 54 (Security of premises);

                                          (c)     Section 59 (Tenant's conduct);

                                          (d)     Section 81 (Tribunal may terminate tenancy where tenant’s conduct unacceptable);

                                          (e)     Section 84 (Order for possession);

                                          (f)      Section 90 (Enforcement orders for possession);

                                          (g)     Division 3 of Part 8 (Powers of the Tribunal);

                                          (h)     Division 4 of Part 8 (Representation).”

 


                  House of Assembly’s Amendments Nos. 7, 8, 9 and 10 -

                  No. 7.            Clause 11, page 7, lines 4 and 5 - Leave out the clause and insert new clause 11 as follows:

PART 3

RESIDENTIAL TENANCIES TRIBUNAL OF SOUTH AUSTRALIA

DIVISION 1 - ESTABLISHMENT OF TRIBUNAL

 

                            11. Establishment of Tribunal The Residential Tenancies Tribunal of South Australia is established.

                  No. 8            Clause 12, page 7, lines 6 to 27 - Leave out the clause and insert new clause 12 as follows:

                            12. Seals (1) The Tribunal will have the seals necessary for the transaction of its business.

                                          (2)     A document apparently sealed with a seal of the Tribunal will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Tribunal.’

                  No. 9            Clause 13, page 7, lines 28 to 31 - Leave out the clause and insert new clause 13 as follows:

DIVISION 2 - JURISDICTION OF THE TRIBUNAL

 

                            13.  Jurisdiction of the Tribunal (1)  The Tribunal has -

                                          (a)     the jurisdiction conferred by this Act; and

                                          (b)     subject to the regulations, jurisdiction to hear and determine claims or disputes arising from tenancies granted for residential purposes by the South Australian Housing Trust; and

                                          (c)     the other jurisdictions conferred on the Tribunal by statute.’

                  No. 10         Clause 14, page 7, lines 32 to 34 - Leave out the clause and insert new clause 14 as follows:

DIVISION 3 - MEMBERSHIP OF TRIBUNAL

 

                            14. Membership of Tribunal  (1) The Tribunal consists of -

                                          (a)     the Chief Magistrate (who is the President of the Tribunal); and

                                          (b)     the other magistrates who hold office under the Magistrates Act 1983; and

                                          (c)     other persons (if any) appointed by the Governor on the nomination of the Minister as additional members of the Tribunal.

                                          (2)     A person is not eligible for appointment under subsection (1)(c) unless the person is a legal practitioner of at least five years standing.

                                          (3)     A person may be appointed under subsection (1)(c) for a term and on conditions specified in the instrument of appointment.

                                          (4)     The Minister must consult with the Chief Magistrate before a term or conditions are determined under subsection (3).

                                          (5)     A person appointed under subsection (1)(c) ceases to hold office if the person -

                                                      (a)     reaches the age of 65 years; or

                                                      (b)     resigns by written notice addressed to the Minister; or

                                                      (c)     in the case of an appointment for a fixed term - completes the term of appointment and is not reappointed; or

                                                      (d)     is removed from office by the Governor on the ground of misconduct, neglect of duty, incompetence or mental or physical incapacity to carry out satisfactorily duties of office.

                                          (6)     A person appointed under subsection (1)(c) is entitled to remuneration, allowances and expenses determined by the Governor.

                                          (7)      The President may delegate a power or function  under this Act to another member of the Tribunal.

                                          (8)     A delegation is revocable at will and does not derogate from the power of the President to act himself or herself in a matter.’

 

                  Legislative Council’s alternative Amendment -

                  Clause 12, page 7, lines 6 to 27 - Leave out this clause and insert new clauses as follow:

            12.  “Membership of the Tribunal  (1)  Members of the Tribunal are appointed by the Governor.

                  (2)     A member of the Tribunal is appointed for a term (not exceeding 5 years) specified in the instrument of appointment and, at the end of a term of appointment, is eligible for reappointment.

                  (3)     A member of the Tribunal is appointed on conditions specified in the instrument of appointment.

                  (4)     The office of member of the Tribunal may be held in conjunction with an office or position in the Public Service of the State.

                  (5)     The Governor may remove a member of the Tribunal from office for -

                              (a)     breach or, or non-compliance with, a condition of appointment; or

                              (b)     misconduct; or

                              (c)     failure or incapacity to carry out official duties satisfactorily.

                  (6)     The office of a member of the Tribunal becomes vacant if the member -

                              (a)     dies; or

                              (b)     completes a term of office and is not reappointed; or

                              (c)     resigns by written notice to the Minister; or

                              (d)     is convicted of an offence punishable by imprisonment; or

                              (e)     is removed from office under subsection (5).

            12A. Presiding and Deputy Presiding Members (1) The Governor may appoint a member of the Tribunal to be the Presiding Member or a Deputy Presiding Member of the Tribunal.

                  (2)     A person may only be appointed as the Presiding Member or a Deputy Presiding Member of the Tribunal if the person is legally qualified.

                  (3)     A Deputy Presiding Member may exercise powers and functions of the Presiding Member by delegation from the Presiding Member.

                  (4)     If the Presiding Member is absent, or there is a temporary vacancy in the office of the Presiding Member, the powers, functions and duties of the Presiding Member devolve on a Deputy Presiding Member appointed by the Governor to act in the absence of the Presiding Member or, if no such appointment has been made, on the most senior Deputy Presiding Member of the Tribunal.

                  (5)     A member who holds office as the Presiding Member or a Deputy Presiding Member of the Tribunal continues in that office until the term of office as member falls due for renewal and, if the member’s term of office is renewed,  the appointment as Presiding Member or Deputy Presiding Member may  (but need not be) renewed also.”

 

                  House of Assembly’s Amendment No. 11 -

                  Clause 15, page 8, lines 3 to 6 - Leave out this clause and insert new clause 15 as follows:

DIVISION 4 - ADMINISTRATIVE STAFF

           

            15. Tribunal’s administrative staff  (1)  The Tribunal’s administrative staff consists of -

                  (a)     the Registrar (who is the Tribunal’s principal administrative officer);

                  (b)     any other persons (including deputy registrars) appointed to the staff of the Tribunal.

                  (2)     The Tribunal’s administrative staff will be appointed under the Courts Administration Act 1993.

                  (3)     A member of the Tribunal’s administrative staff may hold office in conjunction with another office in the public service of the State.’

 

                  Legislative Council’s alternative Amendment -

                  Clause 15, page 8, lines 3 to 6 - Leave out this clause and substitute new clauses as follow:

            15. “Registrar may exercise jurisdiction in certain cases The registrar or a deputy registrar may -

                  (a)     exercise the jurisdiction of the Tribunal if specifically authorised to do so by or under this Act; and

                  (b)     subject to direction by the Presiding Member of the Tribunal - exercise the jurisdiction of the Tribunal in respect of classes of matters, or in circumstances, specified by the regulations.


            15A. Magistrates may exercise jurisdiction in certain cases (1)  A magistrate may exercise the jurisdiction of the Tribunal.

                  (2)     The regulations may prescribe a scheme for the listing of matters before magistrates.

                  (3)     A regulation cannot be made for the purposes of subsection (2) except after the Minister has consulted with the Presiding Member of the Tribunal and the Chief Magistrate.

                  (4)  A magistrate exercising the jurisdiction of the Tribunal is taken to be a member of the Tribunal.”

 

                  House of Assembly’s Amendment No. 15 -

                  Clause 19, page 8 , lines 19 to 21 - Leave out the clause and insert new clause 19 as follows:

            19. ‘Sittings generally to be in public  Subject to a provision of an Act or Rule to the contrary, the Tribunal’s proceedings must be open to the public.’

 

                  Legislative Council’s alternative Amendment -

                  New clause, page 8, after line 21 - Insert new clause as follows:

            19A. “Sittings generally to be in public (1) Subject to any contrary provision of an Act or regulation, the Tribunal’s proceedings must be open to the public.

                  (2)     However, the Tribunal may, in an appropriate case, order that proceedings be held in private.”

 

                  House of Assembly’s Amendment No. 17 -

                  Clause 21, page 8 , lines 24 to 38 - Leave out the clause and  insert new clause 21 as follows:

            21. ‘Proceedings to be conducted with minimum formality (1) The Tribunal’s proceedings must be conducted with the minimum of formality and in exercising its jurisdiction the Tribunal is not bound by evidentiary rules and practices but may inform itself as it thinks appropriate.

                  (2)     The Tribunal is bound by evidential rules and practices in proceedings related to a contempt of the Tribunal.’

 

                  Legislative Council’s alternative Amendment -

                  Clause 21, page 8, lines 26 and 27 - Leave out subclause (1) and insert new subclause as follows:

                  “(1)    The Tribunal has -

                                          (a)     exclusive jurisdiction to hear and determine a matter that may be the subject of an application under this Act;

                                          (b)     subject to the regulations - jurisdiction to hear and determine claims or disputes arising from tenancies granted for residential purposes by the South Australian Housing Trust;

                                          (c)     the other jurisdictions conferred on the Tribunal by statute.”

                  Clause 21, page 8, line 29 - Leave out “$30 000” and insert “$10 000”.

                  Clause 21, page 8, line 37 - Leave out “$30 000” and insert “$10 000”.

                  Clause 21, page 8, line 38 - Leave out “$30 000” and insert “$10 000”.

 

                  House of Assembly’s Amendments Nos. 18 to 21 -

                  No. 18         Clause 22, page 9, lines 1 to 11 - Leave out the clause and insert new clause 22 as follows:

                            22. ‘Tribunal to give reasons for its decisions The Tribunal must, at the request of a party to proceedings, give written reasons for its decision.’

                  No. 19         Clause 23, page 9, lines 12 to 32 - Leave out the clause and insert new clause 23 as follows:

                            23.Special powers in relation to orders and relief (1) The Tribunal may make an order in the nature of an injunction (including an interim injunction) or order for specific performance (even if such remedy would not otherwise be available).

                                          (2)     Although a particular form of relief is sought by a party to proceedings before the Tribunal, the Tribunal may grant any other form of relief that it considers more appropriate to the circumstances of the case.

                                          (3)     The Tribunal may make interlocutory orders on matters within its jurisdiction.

                                          (4)     The Tribunal may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed.

                                          (5)     The Tribunal may, in the exercise of its jurisdiction, make ancillary or incidental orders.’


                  No. 20        Clause 24, page 10 , lines 1 to 30 - Leave out the clause and insert new clause 24 as follows:

DIVISION 7 - CONFERENCES

Conferences

                            24.  Contested proceedings before the Tribunal must be referred, in the first instance, to a conference of the parties to explore the possibilities of resolving the matters at issue by agreement if -

                                          (a)     a member or officer of the Tribunal determines that it would be appropriate for a conference to be held; or

                                          (b)     -

                                                      (i)      the proceedings are of a class prescribed by regulation; or

                                                      (ii)    a relevant Act provides for the operation of this Division,

                                          subject to the qualification that a conference need not be held if a member or officer of the Tribunal dispenses with the conference on the ground that the conference would serve no useful purpose or there is some other proper reason to dispense with the conference.’

                  No. 21         Clause 25, page 10, lines 31 to 36 - Leave out the clause and insert new clause 25 as follows:

                            25.   ‘Presiding officer A member of the Tribunal, the Registrar, or another officer of the Tribunal nominated by the President will preside at a conference.’

 

                  Legislative Council’s alternative Amendment -

                  New clauses, page 9, after line 11 - Insert new heading and clauses as follow:

DIVISION 3A - CONFERENCES

            22A. Conferences (1)  The Tribunal may refer contested proceedings to a conference of the parties to explore the possibilities of resolving the matters at issue by agreement and must (subject to subsection (2)) refer contested proceedings to such a conference if the proceedings are of a class  prescribed by regulation for the purposes of this section.

                  (2)     However, even though proceedings are of a class prescribed by regulation for the purposes of this section, a conference need not be held if a member or officer of the Tribunal dispenses with the conference on the ground that the conference would serve no useful purpose or there is some other proper reason to dispense with the conference.

            22B. Presiding officer A member of the Tribunal, the registrar, or another officer of the Tribunal authorised by the Presiding Member of the Tribunal, will preside at a conference.

            22C.  Registrar to notify parties The registrar must notify the parties of the time and place fixed for a conference in a manner prescribed by the Rules.

            22D. Procedure (1)  A conference may, at the discretion of the presiding officer, be adjourned from time to time.

                  (2)     Unless the presiding officer decides otherwise, the conference will be held in private and the presiding officer may exclude from the conference any person apart from the parties and their representatives.

                  (3)     A party must, if required by the presiding officer, disclose to the conference details of the party’s case and of the evidence available to the party in support of that case.

                  (4)     A settlement to which counsel or other representative of a party agrees at a conference is binding on the party.

                  (5)     The presiding officer (if not legally qualified) may refer a question of law arising at the conference to a member of the Tribunal who is legally qualified for determination.

                  (6)     The presiding officer may record a settlement reached at the conference and make a determination or order to give effect to the settlement.

                  (7)      A determination or order under subsection (6) is a determination or order of the Tribunal.

            22E. Restriction on evidence Evidence of anything said or done in the course of a conference under this Division is inadmissible in proceedings before the Tribunal except by consent of all parties to the proceedings.”

 


                  House of Assembly’s Amendment No. 22 -

                  Clause 26, page 11, lines 1 to 16 - Leave out the clause and insert new clause 26 as follows:

            26. ‘Compulsory attendance and participation at conference (1)  The Registrar must notify the parties by letter of the time and place fixed for a conference.

                  (2)     A party must, if required by the presiding officer, disclose to the conference details of the party’s case and of the evidence available to the party in support of that case.’

 

                  Legislative Council’s alternative Amendment -

                  Clause 26, page 11, lines 2 to 16 - Leave out this clause and insert new clause as follows:

            26. “Mediation (1) If before or during the hearing of proceedings it appears to the Tribunal either from the nature of the case or from the attitude of the parties that there is a reasonable possibility of settling the matters in dispute between the parties, the person constituting the Tribunal may -

                  (a)     appoint, with the consent of the parties, a mediator to achieve a negotiated settlement; or

                  (b)     personally endeavour to bring about a settlement of the proceedings.

                  (2)     A mediator appointed under this section has the privileges and immunities of a member of the Tribunal and may exercise any powers of the Tribunal that the Tribunal may delegate to the mediator.

                  (3)     Nothing said or done in the course of an attempt to settle proceedings under this section may subsequently be given in evidence in proceedings before the Tribunal except by consent of all parties to the proceedings.

                  (4)     A member of the Tribunal who attempts to settle proceedings under this section is not disqualified from hearing or continuing to hear further proceedings in the matter.

                  (5)     If proceedings are settled under this section, the Tribunal may embody the terms of the settlement in an order.”

 

                  House of Assembly’s Amendments Nos. 23 and 24 -

                  No. 23        Clause 27, page 11, lines 17 to 21 - Leave out the clause and insert new clause 27 as follows:

                            27. ‘Procedure (1) A conference may, at the discretion of the presiding officer, be adjourned from time to time.

                                          (2)     Unless the presiding officer otherwise determines, the conference will be held in private and the presiding officer may exclude from the conference any person apart from the parties and their representatives.

                                          (3)     A settlement to which counsel or other representative of a party agrees at a conference is binding on the party.

                                          (4)     The presiding officer may refer a question of law arising at the conference to a member of the Tribunal’s judiciary for determination.

                                          (5)     The presiding officer may record a settlement reached at the conference and make a determination or order to give effect to the settlement.

                                          (6)     A determination or order under subsection (5) is a determination or order of the Tribunal.’

                  No. 24        Clause 28, page 11, lines 22 and 23 - Leave out the clause and insert new clause 28 as follows:

                            28. ‘Restriction on evidence Evidence of anything said or done in the course of a conference under this Division is inadmissible in proceedings before the Tribunal except by consent of the parties.’

 

                  Legislative Council’s alternative Amendment -

                  Clauses 27 and 28 - Leave out these clauses and insert new clause as follows:

            27. “Special powers to make orders and give relief (1)  The Tribunal may make an order in the nature of an injunction (including an interim injunction) or on order for specific performance.

                  (2)     However, a member of the Tribunal who is not legally qualified cannot make an order under subsection (1) without the approval of the Presiding Member of the Tribunal.

                  (3)     Although a particular form of relief is sought by a party to proceedings before the Tribunal, the Tribunal may grant any other form of relief that it considers more appropriate to the circumstances of the case.

                  (4)     The Tribunal may make interlocutory orders on matters within its jurisdiction.

                  (5)     The Tribunal may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed.

                  (6)     The Tribunal may, in the exercise of its jurisdiction, make ancillary or incidental orders.”

 

                  House of Assembly’s Amendments Nos. 25 to 39 -

                  No. 25        Clause 29, page 11, lines 24 to 29 - Leave out the clause and insert new clause 29 as                       follows:

‘DIVISION 8 - EVIDENTIARY AND PROCEDURAL POWERS

                            29.   Tribunals powers to gather evidence (1)  For the purpose of proceedings, the Tribunal may -

                                          (a)     by summons signed by a member, Registrar or deputy registrar of the Tribunal, require a person to attend before the Tribunal;

                                          (b)     by summons signed by a member, Registrar or deputy registrar of the Tribunal, require the production of books, papers or documents;

                                          (c)     inspect books, papers or documents produced before it, retain them for a reasonable period, and make copies of them, or of their contents;

                                          (d)     require a person appearing before the Tribunal to make an oath or affirmation that the person will truly answer relevant questions put by the Tribunal or a person appearing before the Tribunal;

                                          (e)     require a person appearing before the Tribunal (whether summoned to appear or not) to answer any relevant questions put by the Tribunal or a person appearing before the Tribunal.

                                          (2)     If a person -

                                                      (a)     fails without reasonable excuse to comply with a  summons under subsection (1); or

                                                      (b)     refuses or fails to comply with a requirement of the Tribunal under subsection (1), the person is guilty of an offence and liable to a penalty not exceeding $2 000.’

                  No. 26        Clause 30, page 11 , lines 30 to 34 - Leave out the clause and insert new clause 30 as follows:

                            30. ‘Entry and inspection of property (1) The Tribunal may enter land or a building and carry out an inspection that the Tribunal considers relevant to a proceeding before the Tribunal.

                                          (2)     The Tribunal may authorise a person to enter land or a building and carry out an inspection that the Tribunal considers relevant to a proceeding before the Tribunal.

                                          (3)     A person who obstructs a Tribunal, or a person authorised by a Tribunal, in the exercise of a power of entry or inspection under this section commits a contempt of the Tribunal.’

                  No. 27         Clause 31, page 11, lines 35 to 37 and page 12, lines 1 to 3 - Leave out the clause and insert new clause 31 as follows:

                            31. ‘Procedural powers of the Tribunal In proceedings the Tribunal may -

                                          (a)     hear an application in the way the Tribunal considers most appropriate;

                                          (b)     decline to entertain an application, or adjourn a hearing, until the fulfilment of conditions fixed by the Tribunal with a view to promoting the settlement of matters in dispute between the parties;

                                          (c)     decline to entertain an application if it considers the application frivolous;

                                          (d)     proceed to hear and determine a matter in the absence of a party;

                                          (e)     extend a period within which an application or other step in respect of proceedings must be made or taken (even if the period had expired);

                                          (f)      vary or set aside an order if the Tribunal considers there are proper grounds for doing so;

                                          (g)     adjourn a hearing to a time or place or to a time and place to be fixed;

                                          (h)     allow the amendment of an application or other proceeding;

                                          (i)      hear an application jointly with another application;

                                          (j)      receive in evidence a transcript of evidence in proceedings before a court and draw conclusions of fact from that evidence;

                                          (k)     adopt, as in its discretion it considers proper, the findings, decision or judgment of a court that may be relevant to the proceedings;

                                          (l)      generally give directions and do all things that it thinks necessary or expedient in the proceedings.’

                  No. 28        Clause 32, page 12 , lines 4 to 6 - Leave out the clause and insert new clause 32 as follows:

DIVISION 9—APPEALS AND RESERVATION OF

QUESTIONS OF LAW

                            32. Appeals (1)  An appeal lies to the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its jurisdiction or powers.

                                          (2)     An appeal is to be commenced in the manner prescribed by the rules of the District Court.

                                          (3)     On an appeal, the District Court may (according to the circumstances of the case) -

                                                      (a)     re-hear evidence taken before the Tribunal, or take further evidence;

                                                      (b)     confirm, vary or quash the Tribunal’s decision; and

                                                      (c)     make any order that should have been made in the first instance; and

                                                      (d)     make incidental and ancillary orders.’

                  No. 29        Clause 33, page 12 , lines 7 to 11 - Leave out the clause and insert new clause 33 as follows:

                            33. ‘Reservation of questions of law (1)  The Tribunal may reserve a question of law for determination by the District Court.

                                          (2)     If a question of law is reserved, the District Court may determine the question and make consequential orders and directions appropriate to the circumstances of the case.’

                  No. 30        Clause 34, page 12 , lines 12 to 25 - Leave out the clause and insert new clause 34 as follows:

‘DIVISION 10 - MISCELLANEOUS

                            34. Mediation (1)  If before or during the hearing of proceedings it appears to the Tribunal either from the nature of the case or from the attitude of the parties that there is a reasonable possibility of settling the matters in dispute between the parties, the person constituting the Tribunal may -

                                          (a)     appoint, with the consent of the parties, a mediator to achieve a negotiated settlement; or

                                          (b)     itself endeavour to bring about a settlement of the proceedings.

                                          (2)     A mediator appointed under this section has the privileges and immunities of a member of the Tribunal and may exercise any powers of the Tribunal that the Tribunal may delegate to the mediator.

                                          (3)     Nothing said or done in the course of an attempt to settle proceedings under this section may subsequently be given in evidence in proceedings except by consent of all parties to the proceedings.

                                          (4)     A member of the Tribunal who attempts to settle proceedings under this section is not disqualified from hearing or continuing to hear further proceedings in the matter.

                                          (5)     If proceedings are settled under this section, the Tribunal may embody the terms of the settlement in an order.’

                  No. 31         Clause 35, page 12 , lines 26 to 31 - Leave out the clause and insert new clause 35 as follows:

                            35. ‘General powers of the Tribunal to cure irregularity If in proceedings before the Tribunal it appears to the Tribunal that -

                                          (a)     there has been a failure to comply with a requirement of this Act or other law that affects the matter to which the proceedings relate; and

                                          (b)     it would not be unjust or inequitable to exercise the powers conferred by this section,

                                          the Tribunal may excuse the failure by ordering that, subject to such conditions that may be stipulated by the Tribunal, the requirement be dispensed with to the necessary extent.’


                  No. 32        New clause 35A, page 12, after  line 31 - insert new clause 35A as follows:

                            35A. ‘Immunities (1)  A member of the Tribunal exercising the Tribunal’s jurisdiction has the same privileges and immunities from civil liability as a Judge of the Supreme Court.

                                          (2)     A non‑judicial officer of the Tribunal incurs no civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out official functions.’

                  No. 33        New clause 35B, page 12, after  line 31 - insert new clause 35B as follows:

                            35B.‘Contempt of the Tribunal A person who -

                                          (a)     interrupts the proceedings of the Tribunal or misbehaves before the Tribunal; or

                                          (b)     insults the Tribunal or an officer of the Tribunal acting in the exercise of official functions; or

                                          (c)     refuses, in the face of the Tribunal, to obey a lawful direction of the Tribunal,

                                          is guilty of a contempt of the Tribunal.’

                  No. 34        New clause 35C, page 12, after  line 31 - insert new clause 35C as follows:

                            35C. ‘Punishment of contempts   The Tribunal may punish a contempt as follows:

                                          (a)     it may impose a fine not exceeding $2 000; or

                                          (b)     it may commit to prison until the contempt is purged subject to a limit (not exceeding six months) to be fixed by the Tribunal at the time of making the order for commitment.’

                  No. 35        New clause 35D, page 12, after  line 31 - insert new clause 35D as follows:

                            35D. ‘Enforcement of orders (1)  An order of the Tribunal may be registered in the Magistrates Court and enforced as an order of that Court.

                                          (2)     A person who contravenes an order of the Tribunal (other than an order for the payment of money) is guilty of an offence.

                                          Maximum penalty:  $2 000.’

                  No. 36        New clause 35E, page 12, after  line 31 - insert new clause 35E as follows:

                            35E.   ‘Issue and service of Tribunal’s process (1)  Any process of the Tribunal may be issued or executed on a Sunday as well as any other day.

                                          (2)     The validity of process is not affected by the fact that the person who issued it dies or ceases to hold office.’

                  No. 37         New clause 35F, page 12, after  line 31 - insert new clause 35F as follows:

                            35F.  ‘Rules of Tribunal (1)  Rules of the Tribunal may be made -

                                          (a)     regulating the practice and procedures of the Tribunal; and

                                          (b)     regulating costs; and

                                          (c)     providing for the service of any process, notice or other document relevant to proceedings before the Tribunal (including circumstances where substituted service in accordance with the rules or an order of the  Tribunal will constitute due service); and

                                          (d)     dealing with other matters specified under this Act or necessary for the effective and efficient operation of the Tribunal.

                                          (2)     Rules of the Tribunal may be made by the President.

                                          (3)     The Rules take effect as from the date of publication in the Gazette or a later date specified in the rules.’

                  No. 38        New clause 35G, page 12, after  line 31 - insert new clause 35G as follows:

                            35G. ‘Fees  (1)  The Governor may, by regulation, prescribe and provide for the payment of fees in relation to proceedings in the Tribunal.

                                          (2)     The Registrar may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.’

                  No. 39        New clause 35H, page 12, after  line 31 - insert new clause 35H as follows:

                            35H.  ‘Costs The Governor may, by regulation, provide that in proceedings of a prescribed class the Tribunal will not award costs unless -

                                          (a)     all parties to the proceedings were represented by legal practitioners; or

                                          (b)     the Tribunal is of the opinion that there are special circumstances justifying an award of costs.’

 


                  Legislative Council’s alternative Amendment -

                  New clauses, page 12, after line 31 - Insert new heading and clauses as follows:

“DIVISION 9 - MISCELLANEOUS

            35A. Entry and inspection of property (1) The Tribunal may enter land or a building and carry out an inspection the Tribunal considers relevant to a proceeding before the Tribunal.

                  (2)     The Tribunal may authorise a person to enter land or a building and carry out an inspection the Tribunal considers relevant to a proceeding before the Tribunal.

                  (3)     A person who obstructs a Tribunal, or a person authorised by a Tribunal, in exercising a power of entry or inspection under this section commits a contempt of the Tribunal.

            35B. Contempt of the Tribunal A person who -

                  (a)     interrupts the proceedings of the Tribunal or misbehaves before the Tribunal; or

                  (b)     insults the Tribunal or an officer of the Tribunal acting in the exercise of official functions; or

                  (c)     refuses, in the face of the Tribunal, to obey a lawful direction of the Tribunal,

                  is guilty of a contempt of the Tribunal.

            35C. Punishment of contempts (1)  The Tribunal may punish a contempt as follows:

                  (a)     it may impose a fine not exceeding $2 000; or

                  (b)     it may commit to prison until the contempt is purged subject to a limit (not exceeding six months) to be fixed by the Tribunal at the time of making the order for  commitment.

                  (2)     The powers conferred by this section may only be exercised by a member of the Tribunal who is legally qualified.

            35D. Fees (1)  The Governor may, by regulation, prescribe and provide for the payment of fees in relation to proceedings in the Tribunal.

                  (2)     The registrar may remit or reduce a fee if the party by whom the fee is payable is suffering financial hardship, or for any other proper reason.

            35E. Procedural rules  (1)  The Governor may, by regulation -

                  (a)     prescribe matters relevant to the practice and procedures of the Tribunal; and

                  (b)     provide for the service of any process, notice or other document relevant to proceedings before the Tribunal (including circumstances where substituted service in accordance with the regulations or an order of the Tribunal will constitute due service); and

                  (c)     deal with other matters necessary for the effective and efficient operation of the Tribunal.

                  (2)     The Presiding Member of the Tribunal may make Rules of the Tribunal relevant to the practice and procedure of the Tribunal, or to assist in the effective and efficient operation of the Tribunal, in so far as those matters are not dealt with by the regulations.

                  (3)     The Rules take effect as from the date of publication in the Gazette or a later date specified in the rules.”

 

                  House of Assembly’s Amendment No. 44 -

                  Clause 54, page 21, after line 34 - Insert -

                  ‘(4)    The regulations may prescribe conditions under which a landlord may limit the landlord’s civil liability under subsection (1)(a) and, if a landlord complies with those conditions, the maximum amount that a tenant may recover if it is found that the premises are not reasonably secure.’

 

                  Legislative Council’s alternative Amendment -

                  Clause 54, page 21, line 20 - After “the landlord will” insert “take reasonable steps to”.

                  Clause 57, page 23, after line 13 - Insert new subclause as follows:

                  “(1a)            A tenant who intentionally causes serious damage to the premises or ancillary property is guilty of an offence.

                  Maximum penalty:  $2 000.

                  °          The liability to be prosecuted for an offence is in addition to civil liability for breach of the agreement.”

 

                  House of Assembly’s Amendment No. 48 -

                  Clause 69, page 28, lines 1 to 18 - Leave out this clause and insert new clause 47 as follows:

            69.   ‘Notice of termination by landlord on ground of breach of agreement (1)  If the tenant breaches a residential tenancy agreement, the landlord may give the tenant a written notice, in the form required by regulation -

                              (a)     specifying the breach; and

                              (b)     requiring the tenant to remedy the breach within a specified period (which must be a period of at least seven days) from the date the notice is given.

                                          °          If the breach is a failure to pay rent, it is not necessary for the landlord to make a formal demand for payment of the rent before giving a notice under this section.

                              (2)     If the tenant fails to remedy the breach within the specified period, the landlord may serve on the tenant a notice of termination -

                                          (a)     terminating the tenancy; and

                                          (b)     requiring the tenant to give up possession of the premises at the end of a specified period (which must be a period of at least seven days) from the date the notice is given.

                              (3)     The tenant may at any time after receiving a notice under this section, and before giving vacant possession to the landlord, apply to the Tribunal for an order -

                                          (a)     declaring that the tenant is not in breach of the residential tenancy agreement, or has remedied the breach of the agreement, and that the tenancy is not liable to be terminated under this section; or

                                          (b)     reinstating the tenancy.

                              (4)     If the Tribunal is satisfied that a tenancy has been validly terminated under this section, but that it is just and equitable to reinstate the tenancy (or would be just and equitable to reinstate the tenancy if the conditions of the order were complied with), the Tribunal may make an order reinstating the tenancy.

                                          °          An order reinstating the tenancy under this section may be made on conditions that the Tribunal considers appropriate.

                                          °          On an application for an order reinstating the tenancy, the Tribunal may make alternative orders providing for reinstatement of the tenancy if specified conditions are complied with but, if not, ordering the tenant to give up possession of the premises to the landlord.’

 

                  Legislative Council’s alternative Amendment -

                  Clause 69, page 28, lines 2 to 18 - Leave out this clause and insert new clause as follows:

            69. “Notice of termination by landlord on ground of breach of the agreement (1)  If the tenant breaches a residential tenancy agreement, the landlord may give the tenant a written notice, in the form required by regulation -

                  (a)     specifying the breach; and

                  (b)     informing the tenant that if the breach is not remedied within a specified period (which must be a period of at least seven days) from the date the notice is given then -

                               (i)     the tenancy is terminated by force of the notice; and

                              (ii)    the tenant must give up possession of the premises on or before a day specified in the notice (which, subject to subsection (2)(c), must be at least seven days after the end of the period allowed for the  tenant to remedy the breach).

                  (2)     If notice is given under this section on the ground of a failure to pay rent -

                              (a)     the notice is ineffectual unless the rent (or any part of the rent) has remained unpaid in breach of the agreement for not less than 14 days before the notice was given; and

                              (b)     the notice is not rendered ineffectual by failure by the landlord to make a prior formal demand for payment of the rent; and

                              (c)     the day specified in the notice for the tenant to give up possession of the premises if the rent is not paid in accordance with the terms of the notice can be any day after the day on which the tenancy is terminated under the notice1.

                                                            1. Ie. the requirement to give the tenant at least seven days to give up possession of the premises if the tenant remains in default does not apply.

                  (3)     If notice is given under this section in respect of a residential tenancy agreement that creates a tenancy for a fixed term, the notice is not ineffectual because the day specified as the day on which the tenant is to give up possession of the premises is earlier than the last day of that term.


                  (4)     The tenant may at any time after receiving a notice under this section and before giving vacant possession to the landlord, apply to the Tribunal for an order -

                              (a)     declaring that the tenant is not in breach of the residential tenancy agreement, or has remedied the breach of the agreement, and that the tenancy is not liable to be terminated under this section; or

                              (b)     reinstating the tenancy.

                  (5)     If the Tribunal is satisfied that a tenancy has been validly terminated under this section, but that it is just and equitable to reinstate the tenancy (or would be just and equitable to reinstate the tenancy if the conditions of the order were complied with), the Tribunal may make an order reinstating the tenancy.

                              °          An order reinstating the tenancy under this section may be made on conditions that the Tribunal considers appropriate.

                              °          On an application for an order reinstating the tenancy, the Tribunal may make alternative orders providing for reinstatement of the tenancy if specified conditions are complied with but, if not, ordering the tenant to give up possession of the premises to the landlord.”

 

                  House of Assembly’s Amendment No. 54 -

                  New clause 74A, page 30, after line 8 - Insert new clause 74A as follows:

            74A. ‘Notice of termination on ground of breach of agreement (1)  If the landlord breaches a residential tenancy agreement for a fixed term tenancy, the tenant may give the landlord a written notice in the form required by regulation -

                  (a)     specifying the breach; and

                  (b)     requiring the landlord to remedy it within a specified period (which must be at least seven days) from the date the notice is given.

                  (2)     If the landlord fails to remedy the breach within  the specified period, the tenant may serve on the landlord a notice of termination terminating the tenancy at the end of a specified period (which must be at least seven days) from the date the notice is given.

                  (3)     The landlord may, before the time fixed in the tenant’s notice for termination of the tenancy or the tenant gives up possession of the premises (whichever is the later), apply to the Tribunal for an order -

                              (a)     declaring that the landlord is not in breach of the residential tenancy agreement, or has remedied the breach of the agreement, and that the tenancy is not liable to be terminated under this section; or

                              (b)     reinstating the tenancy.

                  (4)     If the Tribunal is satisfied that a tenancy has been validly terminated under this section, but that it is just and equitable to reinstate the tenancy (or would be just and equitable to reinstate the tenancy if the conditions of the order were complied with), the Tribunal may make an order reinstating the tenancy.

                              °          An order reinstating the tenancy under this section may be made on conditions that the Tribunal considers appropriate.’

 

                  Legislative Council’s alternative Amendment -

                  New clause 74A, page 30, after line 8 - Insert new clause as follows:

            74A. “Notice of termination by tenant on ground of breach of the agreement (1)  If the landlord breaches a residential tenancy agreement, the tenant may give the landlord a written notice, in the form required by regulation -

                  (a)     specifying the breach; and

                  (b)     informing the landlord that if the breach is not remedied within a specified period (which must be a period of at least seven days) from the date the notice is given the tenancy is terminated by force of the notice from a date that is also specified in the notice (which must be at least seven days after the end of the period allowed for the landlord to remedy the breach).


                  (2)     The landlord may, before the time fixed in the tenant’s notice for termination of the tenancy or the tenant gives up possession of the premises (whichever is the later), apply to the Tribunal for an order -

                              (a)     declaring that the landlord is not in breach of the residential tenancy agreement, or has remedied the breach of the agreement, and that the tenancy is not liable to be terminated under this section; or

                              (b)     reinstating the tenancy.

                  (3)     If the Tribunal is satisfied that a tenancy has been validly terminated under this section, but that it is just and equitable to reinstate the tenancy (or would be just and equitable to reinstate the tenancy if the conditions of the order were complied with), the Tribunal may make an order reinstating the tenancy.

                              °          An order reinstating the tenancy under this section may be made on conditions that the Tribunal considers appropriate.”

 

                  House of Assembly’s Amendment No. 61 -

                  Clause  81, page 32, lines 24 to 38 and page 33, lines 1 to  2  - Leave out the clause.

 

                  Legislative Council’s alternative Amendment -

                  Clause 81, page 32, lines 25 and 26 - Leave out “make an order terminating a residential tenancy and an order” and substitute “terminate a residential tenancy and make an order”.

 

                  House of Assembly’s Amendments Nos. 66 and 67 -

                  No. 66  Clause 89, page 36, lines 6 to 10 - Leave out the clause.

                  No. 67  Clause 90, page 36, lines 11 to 32 - Leave out the clause.

 

                  Legislative Council’s alternative Amendment -

                  New heading, page 36, after line 5 - Insert new heading as follows:

DIVISION 8 - MISCELLANEOUS

 

                  House of Assembly’s Amendment No. 78 -

                  Schedule, clause 2, page 44, after line 9 - Insert -

                  ‘“former Tribunal” means the Residential Tenancies Tribunal;

                  “RTTSA” means the Residential Tenancies Tribunal of South Australia.’

 

                  Legislative Council’s alternative Amendment -

                  Schedule, clause 3, page 44, lines 11 and 12 - Leave out this clause and substitute -

                  “3.     Subject to the regulations -

                              (a)     this Act (other than section 61) extends to agreements entered into before the commencement of this paragraph that have been subject to the former Act;

                              (b)     section 61 extends to agreements entered into before the commencement of this paragraph that have been subject to the former Act.”

                  Schedule, clause 4, page 44, line 15 - Leave out “commencement of this Act” and insert “commencement of this clause”.

                  Schedule, clause 5, page 44, line 19 - Leave out “this Act” and insert “this clause”.

 

                  House of Assembly’s Amendment No. 80 -

                  Schedule, clause 6, page 44 - Leave out this clause and insert new heading and clauses as follows:

                                                                                      ‘DIVISION 3—CONSEQUENTIAL AMENDMENTS

            6. Amendment of Courts Administration Act 1993  The Courts Administration Act 1993  is amended by inserting after paragraph (e) of the definition of “participating courts” in section 4 the following paragraph:

                  (ea) the Residential Tenancies Tribunal of South Australia; and.

            7. Amendment of Retirement Villages Act 1987  The Retirement Villages Act 1987  is amended -

                  (a)     by striking out the definition of “the Tribunal” from section 3 and substituting the following definition:

                              “Tribunal” means the Residential Tenancies Tribunal of South Australia.;

                  (b)     by striking out subsection (11) of section 14;

                  (c)     by striking out section 20;

                  (d)     by striking out clause 2 of schedule 3;

                  (e)     by striking out subclauses (1), (2) and (4) of clause 5 of schedule 3;

                  (f)      by striking out clause 7 of schedule 3;

                  (g)     by striking out clause 9 of schedule 3.’

 

                  Legislative Council’s alternative Amendment -

                  Schedule, clause 6, page 44, lines 20 to 23 - Leave out this clause and insert new heading and clause as follows:

                                                          ‘DIVISION 3 - CONSEQUENTIAL AMENDMENTS

            6. Amendment of the Retirement Villages Act 1987 The Retirement Villages Act 1987 is amended -(a)   by striking out from section 20 “Supreme Court” wherever it appears and substituting, in each case “District Court”;

                  (b)     by striking out subclause (1) of clause 2 of schedule 3 and substituting the following subclause:

                  (1)      The Tribunal will, for the purpose of hearing proceedings under this Act, be constituted of a single member of the Tribunal.’

 

                                            Schedule of the amendments made by the House of Assembly and disagreed to

                                                                                                                    by the Legislative Council

 

                  House of Assembly’s Amendment No. 2 -

                  Clause 3, page 2, after line 19 - Insert -

                  ‘“relevant Act” means an Act (other than this Act) that confers jurisdiction on the Tribunal;’

 

                  House of Assembly’s Amendment No. 4 -

                  Clause 3, page 3, line 28 - Leave out the definition of “Tribunal” and insert -

                  ‘“Tribunal” means the Residential Tenancies Tribunal of South Australia.’.

 

                  House of Assembly’s Amendments Nos. 12 to 14 -

                  No. 12         Clause 16, page 8 , lines 7 to 9 - Leave out the clause and insert new clause 16 as follows:

                                                                                    ‘DIVISION 5 - CONSTITUTION OF THE TRIBUNAL

                            16. Constitution of the Tribunal  (1)  The Tribunal is constituted for the purpose of hearing and determining proceedings of a single member of the Tribunal.

                                          (2)     However, a member of the Tribunal will sit with assessors selected in accordance with schedule 1 -

                                                      (a)     if the President of the Tribunal so determines; or

                                                      (b)     if the regulations, the Rules or a relevant Act so provide.

                                          (3)     The Registrar, or a deputy registrar, may -

                                                      (a)     exercise the jurisdiction of the Tribunal if specifically authorised to do so by this Act or a relevant Act; and

                                                      (b)     subject to direction by the President of the Tribunal, exercise the jurisdiction of the Tribunal in respect of classes of matters, or in circumstances, specified by the regulations or by the Rules.

                                          (4)     The Tribunal may, at any one time, be separately constituted for the hearing and determination of a number of separate matters.’

                  No. 13         Clause 17, page 8 , lines 10 to 15 - Leave out the  clause and insert new clause 17 as follows:

                                                       ‘DIVISION 6 - GENERAL PROVISIONS ABOUT THE

                                                                           TRIBUNAL’S PROCEEDINGS

                            17. Time and place of Tribunal’s sittings  (1)  The Tribunal may sit at any time (including a Sunday).

                                          (2)     The Tribunal may sit at any place (either within or outside the State).

                                          (3)     The Tribunal will sit at such times and places as the President may direct.


                                          (4)     Offices of the Tribunal will be maintained at such places as the Governor may determine.’

                  No. 14         Clause 18, page 8, lines 16 to 18 - Leave out the clause and insert new clause 18 as follows:

                            18. ‘Adjournment from time to time and place to place The Tribunal may -

                                          (a)     adjourn proceedings from time to time and from place to place; or

                                          (b)     adjourn proceedings to a time, or a time and place, to be fixed; or

                                          (c)     order the transfer of proceedings from place to place.’

 

                  House of Assembly’s Amendment No. 16 -

                  Clause 20, page 8, lines 22 and 23 - Leave out the clause and insert new clause 20 as follows:

            20.   ‘Duty to act expeditiously The Tribunal must, wherever practicable, hear and determine proceedings within 14 days after the proceedings are commenced and, if that is not practicable, as expeditiously as possible.’

 

                  House of Assembly’s Amendments Nos. 40 to 42 -

                  No. 40        Clause 51, page 19, line 22 - Leave out “10” and insert “seven”.

                  No. 41         Clause 51, page 19, line 27 - Leave out “10” and insert “seven”.

                  No. 42        Clause 51, page 20, line 13 - Leave out “10” and insert “seven”.

 

                  House of Assembly’s Amendments Nos. 62 and 63 -

                  No. 62        Clause 82, page 33, line 9 - After “on which” insert “the termination of the tenancy is to take effect and”.

                  No. 63        Clause 82, page 33, line 18 - After “on which” insert “the termination of tenancy is to take effect and”.

 

                  House of Assembly’s Amendments Nos. 68 and 69 -

                  No. 68        Clause 101, page 39, line 35 - Leave out “terminate a residential tenancy or”.

                  No. 69        New clause 103A, page 40, after line 29 - Insert new clause 103A as follows:

                            103A. ‘Substantial monetary claims  (1)  The Tribunal has exclusive jurisdiction to hear and determine a matter that may be the subject of an application under this Act.

                                          (2)     However, the Tribunal does not have jurisdiction to hear and determine a monetary claim if the amount claimed exceeds $30 000 unless the parties to the proceedings consent in writing to the claim being heard and determined by the Tribunal (and if consent is given, it is irrevocable).

                                          (3)     If a monetary claim is above the Tribunal’s jurisdictional limit, the claim and any other claims related to the same tenancy may be brought in a court competent to hear and determine a claim founded on contract for the amount of the claim.

                                          (4)     A court in which proceedings are brought under subsection (3) may exercise the powers of the Tribunal under this Act.

                                          (5)     If the plaintiff in proceedings brought in a court under this section recovers less than $30 000, the plaintiff is not entitled to costs unless the court is satisfied that there were reasonable grounds for the plaintiff to believe that the plaintiff was entitled to $30 000 or more.’

 

                  House of Assembly’s Amendment No. 71 -

                  Clause 104, page 40, after line 35 - Insert -

                  ‘(aa)            the proceedings involve a monetary claim for more than $5000; or.’

 

                  House of Assembly’s Amendments Nos. 75 and 76 -

                  No. 75         New schedule, after page 43 -Insert new schedule as follows:

                                                                                                                                      ‘SCHEDULE 1

                                                                                                Appointment and Selection of Assessors

                            1.        The Minister must establish the following panels of persons who may sit with the Tribunal as assessors in proceedings under this Act:

                                                      (a)     a panel consisting of persons representative of landlords;

                                                      (b)     a panel consisting of persons representative of tenants.

                            2.       The regulations may provide for other panels of persons who may sit as assessors for the purposes of proceedings under other Acts that confer jurisdiction on the Tribunal.

                            3.       A member of a panel is to be appointed by the Minister for a term of office not exceeding three years and on conditions determined by the Minister and specified in  the instrument of appointment.

                            4.       A member of a panel is, on the expiration of a term of office, eligible for reappointment.

                            5.       If assessors are to sit with a member of the Tribunal in proceedings before the Tribunal, the member of the Tribunal must -

                                                      (a)     in the case of proceedings under this Act -select one member from each of the panels to sit with the member;

                                                      (b)     in any other case -select one member from each relevant panel (as determined by the regulations) to sit with the member.

                            6.       However, a member of a panel who has a personal or a direct or indirect pecuniary interest in a matter before the Tribunal is disqualified from participating in the hearing of the matter.

                            7.        If the Tribunal sits with assessors -

                                                      (a)     the member of the Tribunal will preside at the proceedings and determine any questions of law or procedure; and

                                                      (b)     other questions will be determined by majority opinion.

                            8.       If an assessor dies or is for any reason unable to continue with any proceedings, the Tribunal constituted of the member of the Tribunal who is presiding at the proceedings and the other assessor may, if the member of the Tribunal so determines, continue and complete the proceedings.’

                  No. 76         Page 44, line 1 - After “SCHEDULE” insert “2”.

 

                  House of Assembly’s Amendment No. 79 -

                  Schedule, clause 4, page 44, after line 16 - Insert -

                  ‘(2)    However, proceedings that would otherwise be (or continue) before the Tribunal will now be before the RTTSA.

                   (3)    The RTTSA may -

                              (a)     receive in evidence transcripts of evidence in proceedings before the former Tribunal before the commencement of this Act; and

                              (b)     adopt findings or determination of the former Tribunal.’

 

Schedule of the Reason for disagreeing with the foregoing Amendments

 

                  Because the Amendments do not improve the Scheme of the Bill.

                                                                                                                                          J.M. Davis, CLERK OF THE LEGISLATIVE COUNCIL

 

                  Ordered - That consideration of the Message be an Order of the Day for tomorrow.

 

11        Workers Rehabilitation and Compensation (Miscellaneous) Amendment Bill

                  The Minister for Industrial Affairs (Hon. G.A. Ingerson), pursuant to notice, moved - That he have leave to introduce a Bill for an Act to amend the Workers Rehabilitation and Compensation Act 1986 and to insert further transitional provisions in the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995.

                  Question put and passed.

 

                  Bill presented and read a first time.

                  The Minister moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned and resumed on motion.

 


12       Industrial and Employee Relations (Miscellaneous Provisions) Amendment Bill - Conference

                  Order of the Day read for the consideration of the recommendations of the Conference on this Bill.   

 

                                                                                      In Committee

                  Resolved - That the recommendations of the Conference be agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the recommendations of the Conference and had agreed to the same.

                 

13       Road Traffic (Small-Wheeled Vehicles) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                 

                  Question put.

                  House divided (No. 1):

                 

                                          Ayes, 25.

 

                              Hon. H. Allison

                              Mr Andrew

                              Hon. M.H. Armitage

                              Mr Becker

                              Mr Brindal

                              Hon. D.C. Brown

                              Mr Buckby

                              Mr Caudell

                              Mr Evans

                              Mrs Greig

                              Hon. G.A. Ingerson

                              Mr Kerin

                              Mrs Kotz

                              Mr Lewis

                              Hon. W.A. Matthew

                              Mr Meier

                              Hon. J.W. Olsen

                              Hon. J.K.G. Oswald

                              Mrs Penfold

                              Mr Rossi

                              Hon. R.B. Such

                              Mr Venning

                              Mr Wade

                              Hon. D.C. Wotton

                              Hon. S.J. Baker (Teller)

                              Noes, 15.

 

Mr Ashenden

Mr Bass

Hon. F.T. Blevins

Mr Clarke

Mr Condous

Mr De Laine

Mr Foley

Mrs Geraghty

Mrs Hall

Ms Hurley

Mr Leggett

Hon. M.D. Rann

Ms Stevens

Ms White

Mr Atkinson (Teller)

 

 

 

                  So it was resolved in the affirmative.

                  Bill read a second time.

                 

                                                                                      In Committee

                                                                                                Clauses Nos 1 to 6 agreed to.

                                                                                                Clause No. 7 read.

                  Mr Atkinson moved on page 2, line 22 to leave out the words "designated road or part of a road" and insert in lieu thereof the words "road or part of a road other than a playstreet, playfootpath or bikeway".

                  Question - That the amendment be agreed to - put.


                  Committee divided (No. 2):

 

                                          Ayes, 10.

 

                              Hon. F.T. Blevins

                              Mr Clarke

                              Mr De Laine

                              Mr Foley

                              Mrs Geraghty

                              Ms Hurley

                              Hon. M.D. Rann

                              Ms Stevens

                              Ms White

                              Mr Atkinson (Teller)

                  Noes, 29.

 

Mr Andrew

Hon. M.H. Armitage

Mr Ashenden

Mr Bass

Mr Becker

Mr Brindal

Mr Brokenshire

Hon. D.C. Brown

Mr Buckby

Mr Caudell

Mr Condous

Mr Evans

Mrs Greig

Hon. G.M. Gunn

Mrs Hall

Hon. G.A. Ingerson

Mr Kerin

Mrs Kotz

Mr Leggett

Mr Lewis

Mr Meier

Hon. J.W. Olsen

Hon. J.K.G. Oswald

Mrs Penfold

Mrs Rosenberg

Hon. R.B. Such

Mr Venning

Mr Wade

Hon. S.J. Baker (Teller)

 

 

 

                  So it passed in the negative.

                  Mr Atkinson moved on page 2, lines 23 to 28 to leave out these lines.

                  Question - That the amendment be agreed to - put and negatived.

                  Mr Atkinson moved on page 3, line 25 to leave out the words "A road authority incurs no".

                  Question - That the amendment be agreed to - put and negatived.

                                                                                                Clause otherwise amended and agreed to.

                                                                                                Clauses Nos 8 and 9 agreed to.

                                                                                                Title agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same with amendments.

 

                  Bill read a third time and passed.

 

14       Statutes Amendment (Recording of Interviews) Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

                 

                  Bill read a second time.

                  By leave, House proceeded to the third reading.

 

                  Bill read a third time and passed.

 

15       Racing (Re-allocation of Totalizator Betting Deductions) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

                 

                  Bill read a second time.

                 

                                                                                      In Committee

                                                                                                Clauses Nos 1 to 3 agreed to.

                                                                                                Title agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Mr Becker reported that the Committee had considered the Bill referred to it and had agreed to the same without amendment.

 

                  Bill read a third time and passed.

 

16       Workers Rehabilitation and Compensation (Miscellaneous) Amendment Bill

                  Ordered - That the adjourned debate on the question - That this Bill be now read a second time - be now resumed.

 

            Suspension of Standing Orders

                  The Minister for Industrial Affairs, without notice, moved - That Standing Orders be so far suspended as to enable this Bill to pass through its remaining stages without delay.

                  Question put and passed, without a negative voice, there being present an absolute majority of the whole number of Members of the House.

 

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                 

                                                                                      In Committee

                                                                                                Clauses Nos 1 and 2 agreed to.

                  Mr Clarke moved on page 1, after line 15 to insert a new clause as follows:

                              2A. Amendment of s 35 - Weekly payments Section 35 of the principal Act is amended by striking out subsection (5) and substituting the following subsection:

                                          (5)     Weekly payments are not payable for a period of incapacity falling after the date on which the worker reaches 65 years of age.

                  Question - That the amendment be agreed to - put and negatived.

                                                                                                Clause No. 3 agreed to.

                                                                                                New clause No. 3A inserted.

                                                                                                Clauses Nos 4 to 8 agreed to.

                                                                                                Title agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Mr Becker reported that the Committee had considered the Bill referred to it and had agreed to the same with an amendment.

 

                  Bill read a third time and passed.

 


17        Adjournment

                  The Minister for Industrial Affairs moved - That the House do now adjourn.

                  Debate ensued.

                  Question put and passed.

                  House adjourned at 10.01 p.m. until tomorrow at 10.30 a.m.

                                                                                                                                  ____________

 

 

                                                                 MOTIONS WHICH NOTICE WAS GIVEN

 

                  For Thursday 27 July 1995 

                    Notices of Motion: Private Members Bills/Committees/Regulations-

 

                  Mr Ashenden to move - That the Eleventh Report of the Public Works Committee on the Mount Gambier TAFE Campus Redevelopment, be noted.

 

                  Mr Cummins to move - That the  Regulations under the Development Act 1993 relating to Safety Provisions for Buildings gazetted on 27 April and laid on the Table of this House on 30 May 1995, be disallowed.

 

                  Mr Cummins to move - That By-law No. 14 of the Corporation of Noarlunga relating to Bird Scarers, gazetted on 4 May and laid on the Table of this House on 30 May 1995, be disallowed.

 

                                                                                                                                  ____________

 

 

                  Present during the day - All Members except Mr Quirke.

 

 

                  The following Pairs were handed in at the Table during the days proceedings:

 

                  Division No. 1 -

                              Ayes - Hon. D.S. Baker

                              Noes - Mr Quirke

 

                  Division No. 2 -

                              Ayes - Hon. D.S. Baker

                              Noes - Mr Quirke

                             

 

                 

 

                                                                                                                                                                                                                                                G.M. Gunn

                                                                                                                                                                                                                                                SPEAKER

 

G.D. Mitchell

CLERK OF THE HOUSE OF ASSEMBLY