Part 5AResidential tenancy databases

Part 5A—Residential tenancy databases 99A—Definitions agent of a landlord means a person employed, or otherwise authorised, by the landlord to act as the landlord's agent; database means a system, device or other thing used for storing information, whether electronically or in some other form; database operator means an entity that operates a residential tenancy database; inaccurate, in relation to personal information in a residential tenancy database, includes information that is inaccurate because— (a) the information indicates that the person owes a landlord an amount that is more than the bond for a residential tenancy agreement; and (b) the amount owed was paid to the landlord more than 3 months after the amount became due; If the amount is paid to the landlord within 3 months after the amount became due, the information would be out of date. See definition of out of date, paragraph (a). list personal information in a residential tenancy database means— (a) enter the personal information into the database; or (b) give the personal information to a database operator or someone else for entry into the database, and includes amend personal information about a person in the database to include additional personal information about the person; out of date, in relation to personal information in a residential tenancy database, means the information is no longer accurate because— (a) for a listing made on the basis the person owes a landlord an amount that is more than the bond for a residential tenancy agreement—the amount owed was paid to the landlord within 3 months after the amount became due; or (b) for a listing made on the basis the Tribunal has made an order terminating the residential tenancy agreement—the order has been set aside, varied or quashed on review or appeal; personal information means information (including an individual's name) or an opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; residential tenancy database means a database— (a) containing personal information— (i) relating to, or arising from, the occupation of residential premises under a residential tenancy agreement; or (ii) entered into the database for reasons relating to, or arising from, the occupation of residential premises under a residential tenancy agreement; and (b) with an intended purpose of use by landlords or agents of landlords for checking a person's tenancy history for deciding whether a residential tenancy agreement should be entered into with the person. For statutory provisions relating to reports provided otherwise than through the use of a residential tenancy database see Part 4 of the Fair Trading Act 1987. 99B—Application This Division does not apply to a residential tenancy database kept by an entity (including a department of the government of a State or Territory) for use only by that entity or its officers, employees or agents. 99C—Extra-territorial operation of Part (a) a person does an act, or makes an omission, outside the State in relation to personal information— (i) about a person who resides in the State; or (ii) relating to, or arising from, the occupation of residential premises in the State; or (iii) entered into a residential tenancy database for reasons relating to, or arising from, the occupation of residential premises in the State; and (b) the act or omission would constitute an offence against a provision of this Part if it were done or made by the person within the State. (2) The person commits an offence of the same kind as that mentioned in subsection (1)(b) and may be charged with and convicted of the offence. 99D—Notice of usual use of database (a) a person (the applicant) applies to a landlord, whether or not through the landlord's agent, to enter into a residential tenancy agreement; and (b) the landlord or, if the application is made through the landlord's agent, the landlord or agent usually uses 1 or more residential tenancy databases for deciding whether a residential tenancy agreement should be entered into with a person. (2) The landlord or agent must, when the application is made, give the applicant written notice stating the following: (a) the name of each residential tenancy database the landlord or agent usually uses, or may use, for deciding whether a residential tenancy agreement should be entered into with a person; (b) that the reason the landlord or agent uses a residential tenancy database mentioned in paragraph (a) is for checking an applicant's tenancy history; (c) for each residential tenancy database mentioned in paragraph (a), how persons may contact the database operator who operates the database and obtain information from the operator. (3) Subsection (2) applies in relation to a residential tenancy database whether or not the landlord or agent intends to use the database for deciding whether a residential tenancy agreement should be entered into with the applicant. (4) However, the landlord or agent is not required to give the written notice mentioned in subsection (2) if a written notice stating the matters mentioned in the subsection was given to the applicant not more than 7 days before the application was made. The landlord or agent gave a written notice stating the matters mentioned in subsection (2) to the applicant when the applicant obtained the application form and that happened less than 7 days before the applicant made the application. 99E—Notice of listing if database used (a) a person (the applicant) applies to a landlord, whether or not through the landlord's agent, to enter into a residential tenancy agreement; and (b) the landlord or, if the application is made through the landlord's agent, the landlord or agent uses a residential tenancy database for checking whether personal information about the applicant is in the database; and (c) personal information about the applicant is in the database. (2) The landlord or agent must, as soon as possible but within 7 days after using the database, give the applicant a written notice stating— (a) the name of the database; and (b) that personal information about the applicant is in the database; and (c) the name of each person who listed the personal information in the database; and (d) how and in what circumstances the applicant can have the personal information removed or amended under this Division. (3) However, subsection (2)(c) requires the written notice to state the name of a person only if the person is identified in the residential tenancy database as the person who listed the personal information in the database. 99F—Listing can be made only for particular breaches by particular persons (1) A landlord, landlord's agent or database operator may only list personal information about a person in a residential tenancy database if— (a) the person was named as a tenant in a residential tenancy agreement that has ended; and (b) the person has breached the agreement; and (c) because of the breach, either— (i) the person owes the landlord an amount that is more than the bond for the agreement; or (ii) the Tribunal has made an order terminating the residential tenancy agreement; and (d) the personal information— (i) relates only to the breach; and (ii) is accurate, complete and unambiguous; and (e) the Tribunal has not made an order under section 89A(4)(d) prohibiting the listing. (2) Without limiting subsection (1)(d)(ii), the personal information must indicate the nature of the breach. Examples of how personal information can indicate nature of breach— • including the words "rent arrears" in personal information about a person who has breached a residential tenancy agreement by failing to pay rent; • including the words "damage to premises" in the personal information about a person who has breached a residential tenancy agreement by damaging premises. 99G—Further restriction on listing (1) A landlord, landlord's agent or database operator must not list personal information about a person in a residential tenancy database unless the landlord, agent or operator— (a) has, without charging a fee— (i) given the person a copy of the personal information; or (ii) taken other reasonable steps to disclose the personal information to the person; and (b) has given the person at least 14 days to review the personal information and make submissions— (i) objecting to its entry into the database; or (ii) about its accuracy, completeness and clarity; and (c) has considered any submissions made. (2) Subsection (1) does not apply if the landlord, landlord's agent or database operator cannot locate the person after making reasonable enquiries. (3) Subsection (1)(b) and (c) do not apply— (a) to information that, at the time of the listing, is contained in publicly available court or Tribunal records; or (b) to a listing involving only an amendment of personal information about a person under section 99H. 99H—Ensuring quality of listing—landlord's or agent's obligation (1) This section applies if a landlord or landlord's agent who lists personal information in a residential tenancy database becomes aware that the information is inaccurate, incomplete, ambiguous or out of date. (2) The landlord or agent must, within 7 days, give written notice of the following to the database operator who keeps the database: (a) if the information is inaccurate, incomplete, or ambiguous— (i) that the information is inaccurate, incomplete or ambiguous; and (ii) how the information must be amended so that it is no longer inaccurate, incomplete or ambiguous; A landlord lists, in a residential tenancy database, personal information about a tenant who owes the landlord an amount that is more than the bond for a residential tenancy agreement. The tenant pays the amount owed to the landlord more than 3 months after the amount became due. The landlord must, within 7 days after the landlord becomes aware of the payment, give the database operator who keeps the database written notice of— (a) the personal information being inaccurate; and (b) the details of the payment to be included in the personal information so that it is no longer inaccurate. (b) if the information is out of date—that the information is out of date and must be removed. (3) The landlord or agent must keep a copy of the written notice for 1 year after it was given under subsection (2). 99I—Ensuring quality of listing—database operator's obligation (1) This section applies if a landlord or landlord's agent who has listed personal information in a tenancy database gives the database operator who operates the database a written notice stating that the personal information must be— (a) amended in a stated way to make it accurate, complete and unambiguous; or (b) removed. (2) The database operator must amend the personal information in the stated way, or remove the personal information, within 14 days after the operator is given the written notice. 99J—Providing copy of personal information listed (1) A landlord or landlord's agent who lists personal information about a person in a residential tenancy database must, if asked in writing by the person, give the person a copy of the information within 14 days after the request is made. (2) A database operator must, if asked in writing by a person whose personal information is in the residential tenancy database kept by the operator, give the person a copy of the information within 14 days after the request is made. (3) A landlord, landlord's agent or database operator must not charge a fee for giving personal information under subsection (1) or (2). 99K—Keeping personal information listed (1) A database operator must not keep personal information about a particular person in the operator's residential tenancy database for longer than— (a) 3 years; or (b) if, under the national privacy principles, the operator of the database is required to remove the personal information before the end of the 3 year period mentioned in paragraph (a)—the period ending when the information must be removed under the national privacy principles. (2) However, a database operator may keep the person's name in the operator's residential tenancy database for longer than the period stated in subsection (1)(a) or (b) if— (a) other personal information about the person in the database is attached to the name; and (b) the other personal information is not required to be removed under subsection (1) or another law. (3) This section does not limit the operation of another provision of this Part or any other law that requires the removal of the personal information. (4) In this section— national privacy principles means the principles stated in Schedule 3 of the Privacy Act 1988 of the Commonwealth. 99L—Powers of Tribunal (1) The Tribunal may, on the application of the Commissioner or a person whose personal information is in a residential tenancy database, make such orders against a landlord, landlord's agent or database operator as may be necessary or expedient in the opinion of the Tribunal to ensure compliance with this Part or any provision of this Part. (2) If a database operator commits an offence against this Part, the Tribunal may, on the application of the Commissioner, make an order requiring the database operator to comply with conditions specified in the order in relation to a residential tenancy database operated by the operator. (3) An order under subsection (1) or (2) is effective for such period as may be specified in the order or until further order of the Tribunal. 99M—Notifying relevant non‑parties of Tribunal order about listing (a) the Tribunal makes an order that a person must, in relation to a residential tenancy database— (i) amend personal information in a stated way; or (ii) remove all or particular personal information about a person; and (b) the person against whom the order is made (the relevant person) is not a party to the proceedings before the Tribunal. (2) The Tribunal must ensure that a copy of the order is given to the relevant person.