Australian Capital Territory
Residential Tenancies Amendment Act 2017
A2017-32
    
Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
Schedule 1	Commercial guarantees—stage 1 amendments	3

Schedule 2	Commercial guarantees—stage 2 amendments	5
Schedule 3	Rental bond amendments	11

Australian Capital Territory
Residential Tenancies Amendment Act 2017
A2017-32

An Act to amend the Residential Tenancies Act 1997

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Residential Tenancies Amendment Act 2017.
2	Commencement
	(1)	This Act (other than schedules 2 and 3) is taken to have commenced on the day the bill for this Act was presented to the Legislative Assembly.
	(2)	Schedules 2 and 3 commence on a day fixed by the Minister by written notice.
Note 1	A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
Note 2	If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).
	(3)	If schedule 3 has not commenced within 12 months beginning on this Act’s notification day, it automatically commences on the first day after that period.
	(4)	The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to schedule 3.
3	Legislation amended
This Act amends the Residential Tenancies Act 1997.

Schedule 1	Commercial guarantees—stage 1 amendments
(see s 3)
[1.1]	Section 15 (4)
substitute
	(4)	In subsection (1), a reference to a bond—
	(a)	includes a reference to a guarantee or an indemnity under section 16; but
	(b)	does not include a commercial guarantee.
[1.2]	New section 15 (7)
insert
	(7)	In this section:
commercial guarantee, in relation to a residential tenancy agreement, means a contract or arrangement between the lessor, the tenant and a third party—
	(a)	that is in addition to or in place of a bond; and
	(b)	under which the third party, for a fee, benefit or reward, gives a guarantee or indemnity to the lessor for the performance of the tenant’s obligations under the residential tenancy agreement.
[1.3]	Section 16 (2)
substitute
	(2)	A guarantee or an indemnity under subsection (1) is only enforceable—
	(a)	against the guarantor or indemnifier—
	(i)	if it is in addition to a bond—to the extent of the difference between the maximum amount that would have been payable by the tenant as a bond and the amount that is payable by the tenant as a bond; or
	(ii)	if it is in place of a bond—to the extent of the maximum amount that would have been payable by the tenant as a bond; and
	(b)	if the guarantee or indemnity is not a commercial guarantee. 
	(3)	In this section:
commercial guarantee—see section 15 (7).

Schedule 2	Commercial guarantees—stage 2 amendments
(see s 3)
[2.1]	Section 15 (4) (b)
substitute
	(b)	if the guarantee or indemnity is a commercial guarantee—only includes a commercial guarantee that is consistent with a registered standard guarantee contract.
[2.2]	Section 15 (7)
substitute
	(7)	In this section:
registered standard guarantee contract means a standard guarantee contract registered under section 104.
[2.3]	Section 16 (2) and (3)
substitute
	(2)	A guarantee or an indemnity under subsection (1) is only enforceable against the guarantor or indemnifier—
	(a)	if it is in addition to a bond—to the extent of the difference between the maximum amount that would have been payable by the tenant as a bond and the amount that is payable by the tenant as a bond; or
	(b)	if it is in place of a bond—to the extent of the maximum amount that would have been payable by the tenant as a bond.
	(3)	A term of a commercial guarantee, in relation to a residential tenancy agreement, that is inconsistent with, or is in addition to, a registered standard guarantee contract is void.
	(4)	If a regulation requires a commercial guarantee to include a term in the contract, the guarantee is taken to include the term.
	(5)	If a regulation requires a matter to be excluded from a commercial guarantee, the guarantee is void to the extent that it includes the matter.
	(6)	In this section:
registered standard guarantee contract means a standard guarantee contract registered under section 104.
[2.4]	New part 8
insert
Part 8	Registration of standard guarantee contract for commercial guarantee
102	Meaning of commercial guarantee and standard guarantee contract
In this Act:
commercial guarantee, in relation to a residential tenancy agreement, means a contract or arrangement between the lessor, the tenant and a third party—
	(a)	that is in addition to or in place of a bond; and
	(b)	under which the third party, for a fee, benefit or reward, gives a guarantee or indemnity to the lessor for the performance of the tenant’s obligations under the residential tenancy agreement.
standard guarantee contract means a form of contract for a commercial guarantee.
103	Application for registration of standard guarantee contract
	(1)	A person may apply to the commissioner for fair trading to register a standard guarantee contract for a commercial guarantee.
	(2)	The application must—
	(a)	be in writing; and 
	(b)	include the applicant’s name, address, email address and phone number; and
	(c)	include any information prescribed by regulation.
Note 1	It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).
Note 2	A fee may be determined under s 134 for this provision.
104	Commissioner must decide application
	(1)	Within 30 days after the day the application is received, the commissioner for fair trading must—
	(a)	register the standard guarantee contract; or
	(b)	register the standard guarantee contract subject to conditions; or
	(c)	refuse to register the standard guarantee contract.
Note	Failure to decide the application within the required time is taken to be a decision not to register the applicant (see ACT Civil and Administrative Tribunal Act 2008, s 12).
	(2)	Before making a decision under subsection (1), the commissioner may ask an applicant to give the commissioner, within a stated time, information about the applicant or about the standard guarantee contract, that the commissioner reasonably needs to decide the application.
	(3)	If the applicant does not give the commissioner the information requested under subsection (2), the commissioner may refuse to register the standard guarantee contract.
	(4)	If the commissioner refuses to register the standard guarantee contract, or registers the standard guarantee contract subject to conditions, the applicant may apply to the ACAT for a review of the decision.
Note 1	The commissioner for fair trading must take reasonable steps to give a reviewable decision notice to any person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).
Note 2	The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008.
105	Register of standard guarantee contracts
	(1)	The commissioner for fair trading must keep a register of standard guarantee contracts.
	(2)	The register must include—
	(a)	the business name and the trading name of the person who has registered a standard guarantee contract; and
	(b)	any information prescribed by regulation.
	(3)	The register may include any other information the commissioner for fair trading believes will improve consumer protection.
	(4)	The register may be kept in any form, including electronically, that the commissioner decides.
	(5)	The commissioner must make the register available to the public.
Note 	The Territory privacy principles (the TPPs) apply to the commissioner for fair trading (see Information Privacy Act 2014, sch 1).  The TPPs deal with the collection, storage and exchange of personal information.
106	Relationship to Australian Consumer Law (ACT)
This part and section 16 (3) do not affect the operation of the Australian Consumer Law (ACT).
[2.5]	New section 134
insert
134	Determination of fees
	(1)	The Minister may determine fees for this Act.
Note	The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).
	(2)	A determination is a disallowable instrument.
Note	A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
[2.6]	New section 136 (2) (c)
insert
	(c)	commercial guarantees, including the following:
	(i)	grounds for registering, applying a condition to, or refusing to register a standard guarantee contract;
	(ii)	a matter that must be included in, or excluded from, a commercial guarantee;
	(iii)	requirements in relation to reporting on, record keeping for and the administration of commercial guarantees;
	(iv)	if a person has registered a standard guarantee contract—information that the person must give to another person before entering into a commercial guarantee with the other person;
	(v)	amending, renewing, ending or suspending the registration of a standard guarantee contract.
[2.7]	Schedule 1, clause 13 (1)
omit
commissioner of fair trading 
substitute
commissioner for fair trading
[2.8]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
[2.9]	Dictionary, new definition of commercial guarantee
insert
commercial guarantee—see section 102.
[2.10]	Dictionary, definition of commissioner
omit
[2.11]	Dictionary, new definition of standard guarantee contract
insert
standard guarantee contract—see section 102.

Schedule 3	Rental bond amendments
(see s 3)
[3.1]	Section 24
substitute
24	Deposit of bond by tenant
	(1)	If the lessor and the tenant agree to the tenant depositing the bond with the Territory—
	(a)	the tenant must deposit with the Territory the amount of the bond; and
	(b)	the tenant, or the lessor on the tenant’s behalf, must lodge a notice in accordance with section 25.
	(2)	Unless the lessor and the tenant otherwise agree, the tenant is not entitled to possession of the premises until—
	(a)	the tenant gives the lessor evidence that the bond has been deposited; or
	(b)	the Territory gives the lessor written notice that the bond has been deposited.
Note	Under the Electronic Transactions Act 2001, s 8 (1), information required to be in writing may be given electronically in certain circumstances.
[3.2]	Section 25 heading
substitute
25	Notice about deposit
[3.3]	Section 25
omit
or section 24 (1) (b)
substitute
, section 24 (1) (b) or section 26 
[3.4]	Section 26
substitute
26	Acknowledgment of receipt of bond money
If the Territory accepts an amount of bond, the Territory must—
	(a)	if the tenant deposited the bond—give the tenant a receipt for the amount; and
	(b)	give the tenant and lessor a notice in accordance with section 25.
Note	Under the Electronic Transactions Act 2001, s 8 (1), information required to be in writing under this section may be given electronically in certain circumstances.
[3.5]	Schedule 1, clause 19 (a) and (b)
substitute
	(a)	the tenant, or the lessor on the tenant’s behalf, must complete the bond lodgment form provided by the Office of Rental Bonds and lodge the form with the Office;
	(b)	the tenant must lodge the bond with the Office of Rental Bonds in the way permitted by the Office;
[3.6]	Schedule 1, clause 19 (c) 
omit
(such evidence includes the receipt of the Office of Rental Bonds)
substitute
or the Office of Rental Bonds notifies the lessor that the bond was received by the Office
[3.7]	Schedule 1, clause 20 (b), (c) and (d)
substitute
	(b)	the lessor must complete the bond lodgment form provided by the Office of Rental Bonds and lodge the form with the Office;
Note	Under the Electronic Transactions Act 2001, s 8 (1), information required to be in writing may be given electronically in certain circumstances.
	(c)	the lessor must lodge the bond with the Office of Rental Bonds in the way permitted by the Office within—
	(i)	the later of 2 weeks after receiving the bond and the commencement of the tenancy; or
	(ii)	if the lessor’s real estate agent lodges the bond—the later of 4 weeks after receiving the bond and the commencement of the tenancy.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 14 September 2017.
2	Notification
	Notified under the Legislation Act on 7 November 2017.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

I certify that the above is a true copy of the Residential Tenancies Amendment Bill 2017, which was passed by the Legislative Assembly on 24 October 2017. 

Acting Clerk of the Legislative Assembly

© Australian Capital Territory 2017