Rooming House Operators Act 2016

Part 1—Preliminary

1 Purpose

The purpose of this Act is—

(a) to foster professionalism and reduce exploitative and undesirable practices within the rooming house sector by—

(i) establishing a licensing scheme for rooming house operators; and

(ii) ensuring that licences are only granted to persons who are fit and proper within the meaning of the Act; and

(iii) holding licensed rooming house operators to account for their conduct and the conduct of persons involved in the management or operation of their rooming houses; and

(iv) protecting the rights of rooming house residents; and

(b) to make consequential amendments to the Australian Consumer Law and Fair Trading Act 2012, the Business Licensing Authority Act 1998, the Estate Agents Act 1980 and the Residential Tenancies Act 1997.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2017, it comes into operation on that day.

3 Definitions

(1) In this Act—

associate of a relevant person means the following—

(a) a business partner of the relevant person;

(b) an employee, agent or contractor of the relevant person;

(c) a spouse, domestic partner, child, grandchild, sibling, parent or grandparent of the relevant person;

(d) a person with whom the relevant person has entered into a lease;

(e) a prescribed person or a person belonging to a prescribed class of person;

Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;

S. 3(1) def. of body corporate amended by No. 48/2018 s. 66(1).

body corporate means—

(a) a company registered under the Corporations Act; or

(b) an incorporated association within the meaning of section 3 of the Associations Incorporation Reform Act 2012; or

(ba) an incorporated association established under an Act of another State or a Territory; or

(c) a co-operative within the meaning of the Co-operatives National Law (Victoria);

Building Code of Australia has the same meaning as in section 3(1) of the Building Act 1993;

Chief Commissioner of Police means the Chief Commissioner of Police appointed under the Victoria Police Act 2013;

S. 3(1) def. of Chief Executive Officer amended by No. 9/2020 s. 390(Sch. 1 item 89).

Chief Executive Officer has the same meaning as in section 3(1) of the Local Government Act 2020;

Consumer Act has the same meaning as in the Australian Consumer Law and Fair Trading Act 2012;

S. 3(1) def. of Council amended by No. 9/2020 s. 390(Sch. 1 item 89).

Council has the same meaning as in section 3(1) of the Local Government Act 2020;

Director means the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender);

embargo notice means a notice issued by an inspector under section 63;

externally-administered body corporate means a body corporate—

(a) that is being wound up; or

(b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or

(c) that is under administration; or

(d) that has executed a deed of company arrangement that has not yet terminated; or

(e) that has entered into a compromise or arrangement with another person the administration of which has not been concluded;

fit and proper person means, in relation to—

(a) an applicant for a licence, that none of the relevant persons meets any of the licence disqualification criteria;

(b) a licensee who, when applying for a renewal of the licensee's licence, does not include details of a new manager or officer in the application, that none of the relevant persons meets any of the renewal disqualification criteria; or

(c) a licensee who, when applying for a renewal of the licensee's licence, includes details of a new manager or officer, that the new manager or officer does not meet any of the licence disqualification criteria and that neither the licensee nor any other relevant person meets any of the renewal disqualification criteria;

inspector means an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012;

licence means a licence to operate a rooming house granted or renewed under section 16;

licence disqualification criteria means the criteria set out in section 17;

Licensing Registrar means the Registrar of the Business Licensing Authority appointed under the Business Licensing Authority Act 1998;

manager means a natural person who has attained the age of 18 years and who takes part, or proposes to take part, in the management of a rooming house, whether or not the person is employed or engaged by a rooming house operator or by another person acting on behalf of the rooming house operator;

S. 3(1) def. of notice to vacate amended by No. 45/2018 s. 377(1).

notice to vacate means a notice to vacate within the meaning of the Residential Tenancies Act 1997;

officer in relation to a body corporate means any person (by whatever name called) who—

(a) in the case of a company, is a director or secretary of the company; or

(b) in the case of an incorporated association, is a member of the committee of management of the incorporated association or the secretary of the incorporated association; or

(c) in the case of a co-operative, is a member of the board of directors of the co-operative; or

(d) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company, incorporated association or co-operative (as the case may be), but does not include a manager; or

(e) has the capacity to affect significantly the financial standing of the company, incorporated association or
co-operative (as the case may be); or

(f) in accordance with whose instructions the directors of the company, the members of the committee of management of the incorporated association or the members of the board of directors of the co-operative (as the case may be) are accustomed to act;

receiver has the same meaning as in section 9 of the Corporations Act;

receiver and manager has the same meaning as in section 9 of the Corporations Act;

Register means the Register of Licensed Rooming House Operators established under
section 43;

registered office has the same meaning as in the Corporations Act;

relevant person means—

(a) in relation to a licensee or an applicant for a licence who is a natural person—

(i) that natural person; or

(ii) a person who is a manager of a rooming house that is currently (or is proposed to be) operated by the person referred to in subparagraph (i); and

(b) in relation to a licensee or an applicant for a licence that is a body corporate—

(i) that body corporate; or

(ii) a person who is a manager of a rooming house that is currently (or is proposed to be) operated by the body corporate referred to in subparagraph (i); or

(iii) an officer of the body corporate;

renewal disqualification criteria means the criteria set out in section 18;

resident means a person who, with the agreement of a rooming house operator, occupies as the resident's only or main residence a room in a rooming house operated by the rooming house operator;

rooming house has the same meaning as in section 3(1) of the Residential Tenancies Act 1997;

rooming house operator means a natural person who, or a body corporate that, conducts the business of operating a rooming house, whether or not the rooming house operator owns the property on which the rooming house is located;

S. 3(1) def. of rooming house provisions substituted by No. 48/2018 s. 66(2).

rooming house provisions means any provisions of the Residential Tenancies Act 1997 to the extent to which they apply to a room, a rooming house, a resident or tenant of a room in a rooming house, a rooming house owner, or a rooming house mortgagee within the meaning of that Act.

(2) For the purposes of the definition of domestic partner—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

(3) For the purposes of the definition of officer, in paragraph (f) of that definition, instructions excludes advice given by a person in the proper performance of functions attaching to the person's professional capacity or the person's business relationship with—

(a) in the case of a company, the directors of the company; or

(b) in the case of an incorporated association, the members of the committee of management of the incorporated association; or

(c) in the case of a co-operative, the members of the board of directors of the co-operative.

(4) Subject to subsection (5), for the purposes of this Act, a person takes part in the management of a rooming house if the person, on behalf of the rooming house operator—

(a) negotiates residency agreements with residents of the rooming house; or

(b) enters into residency agreements with residents of the rooming house; or

(c) gives notice to a resident of the rooming house under the Residential Tenancies Act 1997; or

(d) receives a payment of rent from a resident of the rooming house.

(5) A person does not take part in the management of a rooming house merely because the person carries out caretaking duties at the rooming house.

Part 2—The Authority and the Director

4 Functions of the Authority

The functions of the Authority under this Act are—

(a) to determine applications for licences and renewals of licences; and

(b) to determine whether a new manager of a rooming house operated by a licensee or a new officer of a body corporate that is a licensee meets any of the licence disqualification criteria; and

(c) to liaise with the Director, the Chief Executive Officers of Councils and the Chief Commissioner of Police so as to assist those persons to carry out their functions in relation to this Act; and

(d) to refer relevant matters for investigation by the Director or any other relevant body; and

(e) any other function conferred on the Authority by or under this Act, any regulations made under this Act or any other Act.

5 Functions of the Director

The functions of the Director under this Act are—

(a) to monitor compliance with, and investigate and prosecute alleged contraventions of, this Act; and

(b) to instigate disciplinary action against licensees; and

(c) to liaise with the Authority so as to assist the Authority to carry out its functions in relation to this Act; and

(d) to refer to other bodies for investigation, if appropriate, any allegation, complaint or information in relation to rooming house operators; and

(e) any other function conferred on the Director by or under this Act, any regulations made under this Act or any other Act.

6 Delegation by Director

The Director, by instrument, may delegate any function or power of the Director under this Act (other than this power of delegation) to any person or class of person employed under Part 3 of the Public Administration Act 2004.

Part 3—Licences

Division 1—Requirement for licence

S. 7 (Heading) substituted by No. 48/2018 s. 67(1).

7 Offence to operate a rooming house without a licence

S. 7(1) substituted by No. 48/2018 s. 67(2).

(1) A person other than a registered housing association or registered housing provider must not conduct the business of operating a rooming house without a licence.

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years.

In the case of a body corporate, 1200 penalty units.

(2) If a declaration is made under section 19(2) or (3) of the Residential Tenancies Act 1997 in respect of a building, subsection (1) does not apply to a rooming house operator who operates a rooming house at that building for a period of 60 days from the date that the declaration is made.

Note to s. 7(2) amended by No. 40/2022 s. 57.

Section 19(2) and (3) of the Residential Tenancies Act 1997 provides that the Minister may declare certain buildings to be rooming houses following a request by the owner of the building or Homes Victoria (within the meaning of section 4(1) of the Housing Act 1983).

S. 7(3) inserted by No. 48/2018 s. 67(3).

(3) In this section—

registered housing association has the same meaning as in the Housing Act 1983;

registered housing provider has the same meaning as in the Housing Act 1983.

8 Person representing to be a licensee

A person who does not hold a licence must not make a representation stating or implying that the person is a licensee or is otherwise authorised to operate a rooming house under this Act.

Division 2—Application for licence or
renewal of licence

9 Who may apply for a licence or renewal of a licence?

(1) A person may make an application for a licence if the person—

(a) has attained the age of 18 years, in the case of a natural person; or

(b) is a body corporate.

(2) A person who is a licensee may apply for a renewal of the person's licence.

10 When to apply for renewal of licence

An application for a renewal of a licence must be made before the expiry of the licence but not earlier than 60 days before that expiry.

11 How to make application

(1) An application for a licence or for a renewal of a licence must be made in the manner and form approved by the Authority.

(2) An application for a licence or a renewal of a licence by a natural person who is, or intends to be, a rooming house operator must include the following information—

(a) the applicant's full name;

(b) the applicant's date of birth;

(c) the applicant's residential address;

(d) if a rooming house that the applicant currently operates, or intends to operate, has a manager or a proposed manager, the following details about the manager—

(iii) the manager's residential address;

(e) any other information in relation to the application required by the Authority.

(3) An application for a licence or a renewal of a licence by a body corporate that is, or intends to be, a rooming house operator must include the following information—

(a) the name of the body corporate, its business name (if any) and its ACN or ABN;

(b) the address of its registered office;

(c) the full name of each officer of the body corporate and each officer's date of birth, position and residential address;

(d) if a rooming house that the applicant currently operates, or intends to operate, has a manager or a proposed manager, the following details about the manager—

(ii) the manager's residential address;

(e) any other information in relation to the application required by the Authority.

(4) An application made under subsection (1) must be accompanied by—

(a) any document or other information required by the Authority—

(i) to verify the identity of a relevant person; or

(ii) to enable the Authority to ascertain whether a relevant person meets any of the licence disqualification criteria or renewal disqualification criteria, as the case may be; and

(b) the applicant's consent to the Authority checking or verifying any information provided by the applicant under this section; and

(c) the manager's consent to the Authority verifying the manager's identity; and

(d) in the case of a body corporate, each officer's consent to the Authority verifying the officer's identity; and

(e) in the case of a body corporate, a declaration by the natural person making the application that—

(i) the natural person is authorised by all the officers of the body corporate to make the application on behalf of the body corporate; and

(ii) the information provided in the application is true and correct; and

(f) in the case of a natural person, a declaration made by the natural person that the information provided in the application is true and correct.

(5) An application made under subsection (1) must be accompanied by—

(a) the prescribed licence application fee or the prescribed renewal of licence application fee; and

(b) the prescribed licence fee.

12 Withdrawal of application

(1) A person may withdraw, in the manner and form approved by the Authority, the person's application for a licence or a renewal of a licence at any time before the application is determined.

(2) If an application for a licence or a renewal of a licence is withdrawn by an applicant under subsection (1) or is refused by the Authority under section 16, the Authority—

(a) at its discretion, may refund in whole or part the application fee that accompanied the application; and

(b) must refund the licence fee that accompanied the application.

13 False or misleading information

A person must not in, or in relation to, an application for a licence or a renewal of a licence give information that is false or misleading in a material particular.

Division 3—Investigation of applicants

14 Authority may conduct inquiries and require further information or a consent to disclosure of information

In considering an application for a licence or a renewal of a licence, the Authority may—

(a) conduct any inquiries in relation to the application that it thinks fit; and

(b) require a relevant person to provide further information in relation to the application within a specified time; and

(c) require a relevant person to confirm the veracity of any information provided by the relevant person under this Act by means of a statutory declaration within a specified time; and

(d) require a relevant person to provide within a specified time any consent to disclosure of information that the Authority requires for the purpose of performing, or to have performed, a check on the relevant person or on any information included with the application.

15 Request to Director or others for information

(1) Without limiting section 14, in considering an application for a licence or a renewal of a licence, the Authority may request the following persons to provide information in relation to the application—

(a) the Director;

(b) the Chief Executive Officer of a Council;

(c) the Chief Commissioner of Police.

(2) If the Authority makes a request to the Director or the Chief Executive Officer of a Council under subsection (1), the Director or Chief Executive Officer of a Council (as the case may be)—

(a) may make any inquiries in relation to the application that the Director or Chief Executive Officer of a Council considers appropriate to enable the proper consideration of the application; and

(3) If the Authority makes a request to the Chief Commissioner of Police under subsection (1), the Chief Commissioner of Police—

(a) must make any inquiries in relation to the application that the Chief Commissioner of Police considers appropriate to enable the proper consideration of the application; and

(4) The Authority may take into account any report received under this section in considering an application for a licence or a renewal of a licence.

Division 4—Determination of applications

16 Granting or refusing to grant licence—renewing or refusing to renew licence

(1) If the Authority is satisfied that the applicant is a fit and proper person, the Authority must—

(a) grant a licence to an applicant or renew an applicant's licence, as the case may be; and

(b) notify the applicant in writing of the Authority's determination.

(2) The Authority must refuse to grant a licence to an applicant or refuse to renew an applicant's licence, as the case may be, if—

(a) the Authority is satisfied that the applicant is not a fit and proper person; or

(b) the application for the licence or renewal of the licence is incomplete; or

(c) any information required under section 14 has not been provided within the time specified by the Authority; or

(d) a consent required under section 14 has not been provided within the time specified by the Authority; or

(e) a statutory declaration required under
section 14 has not been provided within the time specified by the Authority.

(3) If the Authority refuses to grant a licence or to renew the applicant's licence, the Authority must—

(a) notify the applicant in writing that the application has been refused and specify the grounds for the refusal; and

(b) refund the prescribed licence fee to the applicant; and

(c) advise the Director of the refusal.

17 Application for licence—licence disqualification criteria

(1) The following are the licence disqualification criteria—

(a) within the preceding 10 years, a relevant person has been convicted or found guilty of—

S. 17(1)(a)(i) amended by No. 7/2022 s. 76(a).

(i) an offence involving fraud, dishonesty, drug cultivation or trafficking, sexual slavery or servitude, child pornography or violence that was punishable by a term of imprisonment of 3 months or more at the time of the conviction or finding of guilt or a sexual offence that was punishable by a term of imprisonment of 3 months or more at the time of the conviction or finding of guilt; or

S. 17(1)(a)(ia) inserted by No. 7/2022 s. 76(b).

(ia) an offence against section 5(1), 6(1), 7(1), 8(1), 9(1), 10(1) or 11(1) of the Sex Work Act 1994 despite its repeal by the Sex Work Decriminalisation Act 2022; or

S. 17(1)(a)(ii) amended by No. 7/2022 s. 76(c).

(ii) an offence that, if committed in Victoria, would constitute an offence referred to in subparagraph (i) or (ia);

(b) a relevant person is an insolvent under administration;

(c) a relevant person is an externally administered corporation under the Corporations Act;

S. 17(1)(d) amended by No. 13/2019 s. 221(Sch. 1 item 44).

(d) a relevant person is a represented person within the meaning of the Guardianship and Administration Act 2019;

(e) within the preceding 5 years, a relevant person's licence was cancelled;

(f) within the preceding 5 years, a relevant person has been convicted or found guilty of—

(i) an offence against this Act (other than section 39); or

(ii) in relation to a rooming house, an offence against section 67, 75(2), 176(2), 183, 194(4), 210(1) or (2) or 211 of the Public Health and Wellbeing Act 2008; or

(iii) in relation to a rooming house, an offence against any regulations made under the Public Health and Wellbeing Act 2008; or

(iv) an offence against the rooming house provisions; or

(v) in relation to a rooming house, an offence against section 118(1), 221ZZC(1), 221ZZG(1) or (2), 231F(3) or (4) or 246 of the Building Act 1993; or

(vi) in relation to a rooming house, an offence against any regulation made under the Building Act 1993 in relation to—

(A) a Class 1 building or Class 3 building (within the meaning of the Building Code of Australia); or

(B) barriers for swimming pools or spas; or

(C) changes of use of a building; or

(D) the maintenance of essential safety measures; or

(vii) in relation to a rooming house, an offence against section 126 or 137 of the Planning and Environment Act 1987; or

(viii) an offence against section 45 of the Australian Consumer Law and Fair Trading Act 2012; or

(ix) an offence against section 168 of the Australian Consumer Law (Victoria);

(g) within the preceding 5 years, a relevant person was the subject of an order referred to in section 216(2)(h) of the Australian Consumer Law and Fair Trading Act 2012 in relation to a contravention of—

(i) the rooming house provisions; or

(ii) section 45 of the Australian Consumer Law and Fair Trading Act 2012; or

(iii) section 168 of the Australian Consumer Law (Victoria); or

(iv) this Act;

(h) within the preceding 5 years, a relevant person was the subject of an order of the kind referred to in section 216(2)(h) of the Australian Consumer Law and Fair Trading Act 2012 and made under section 216(3) of that Act in relation to a contravention of—

(i) the rooming house provisions; or

(ii) section 45 of the Australian Consumer Law and Fair Trading Act 2012; or

(iii) section 168 of the Australian Consumer Law (Victoria); or

(iv) this Act;

(i) in the case of an applicant that is a body corporate, within the preceding
5 years an officer of the body corporate was an officer of another body corporate (the second-mentioned body corporate) at the time that the second-mentioned body corporate—

(i) committed an offence referred to in paragraph (f) for which the second‑mentioned body corporate was later convicted or found guilty; or

(ii) contravened a provision referred to in paragraph (g) or (h) in relation to which the second-mentioned body corporate was later the subject of an order referred to in either of those paragraphs;

S. 17(1)(j) amended by No. 48/2018 s. 68(1).

(j) in the case of an applicant that is a body corporate, an officer of the body corporate was an officer of another body corporate whose licence was cancelled within the preceding 5 years;

S. 17(1)(k) inserted by No. 48/2018 s. 68(2).

(k) in the case of an applicant who is a natural person, within the preceding 5 years that person was an officer of a body corporate at the time that the body corporate—

(i) committed an offence referred to in paragraph (f) for which the body corporate was later convicted or found guilty; or

(ii) contravened a provision referred to in paragraph (g) or (h) in relation to which the body corporate was later the subject of an order referred to in either of those paragraphs;

S. 17(1)(l) inserted by No. 48/2018 s. 68(2).

(l) in the case of an applicant who is a natural person, that person was an officer of a body corporate whose licence was cancelled within the preceding 5 years.

(2) Despite anything to the contrary in subsection (1), a relevant person is not taken to meet a licence disqualification criterion if—

(a) the relevant person was convicted or found guilty of an offence referred to in subsection (1)(f) against a provision for which the relevant person was issued or served with an infringement notice under the Infringements Act 2006 and—

(i) the relevant person elected under section 16 of that Act to have the matter heard and determined in the Magistrates' Court; or

(ii) the relevant person elected under section 30 of that Act to have the matter heard and determined in the Magistrates' Court; or

(b) the relevant person was the subject of an order referred to in subsection (1)(g) or (h) and the order was agreed to by all parties to the proceeding before the commencement of this section.

18 Application for renewal of licence—renewal disqualification criteria

(1) The following are the renewal disqualification criteria—

(a) during the period to which the licence relates, a relevant person was convicted or found guilty of—

S. 18(1)(a)(i) amended by No. 7/2022 s. 77(a).

(i) an offence involving fraud, dishonesty, drug cultivation or trafficking, sexual slavery or servitude, child pornography or violence that was punishable by a term of imprisonment of 3 months or more at the time of the conviction or finding of guilt or a sexual offence that was punishable by a term of imprisonment of 3 months or more at the time of the conviction or finding of guilt; or

S. 18(1)(a)(ia) inserted by No. 7/2022 s. 77(b).

(ia) an offence against section 5(1), 6(1), 7(1), 8(1), 9(1), 10(1) or 11(1) of the Sex Work Act 1994 despite its repeal by the Sex Work Decriminalisation Act 2022; or

S. 18(1)(a)(ii) amended by No. 7/2022 s. 77(c).

(ii) an offence that, if committed in Victoria, would constitute an offence referred to in subparagraph (i) or (ia);

(b) during the period to which the licence relates—

(i) a relevant person became an insolvent under administration; or

(ii) a relevant person became an externally administered corporation under the Corporations Act; or

S. 18(1)(b)(iii) amended by No. 13/2019 s. 221(Sch. 1 item 44).

(iii) a relevant person became a represented person within the meaning of the Guardianship and Administration Act 2019;

(c) during the period to which the licence relates, the licence of a relevant person (other than the applicant) was cancelled;

(d) during the period to which the licence relates, a relevant person was convicted or found guilty of—

(i) an offence against this Act (other than section 39); or

(ii) in relation to a rooming house, an offence against section 67, 75(2), 176(2), 183, 194(4), 210(1) or (2) or 211 of the Public Health and Wellbeing Act 2008; or

(iii) in relation to a rooming house, an offence against any regulations made under the Public Health and Wellbeing Act 2008; or

(iv) an offence against the rooming house provisions; or

(v) in relation to a rooming house, an offence against section 118(1), 221ZZC(1), 221ZZG(1) or (2), 231F(3) or (4) or 246 of the Building Act 1993; or

(vi) in relation to a rooming house, an offence against any regulation made under the Building Act 1993 in relation to—

(A) a Class 1 building or Class 3 building (within the meaning of the Building Code of Australia); or

(B) barriers for swimming pools or spas; or

(C) changes of use of a building; or

(D) the maintenance of essential safety measures; or

(vii) in relation to a rooming house, an offence against section 126 or 137 of the Planning and Environment Act 1987; or

(viii) an offence against section 45 of the Australian Consumer Law and Fair Trading Act 2012; or

(ix) an offence against section 168 of the Australian Consumer Law (Victoria);

(e) during the period to which the licence relates, a relevant person was the subject of—

(i) an order referred to in section 216(2)(h) of the Australian Consumer Law and Fair Trading Act 2012 in relation to a contravention of—

(A) the rooming house provisions; or

(B) section 45 of the Australian Consumer Law and Fair Trading Act 2012; or

(C) section 168 of the Australian Consumer Law (Victoria); or

(D) this Act;

(ii) an order of the kind referred to in section 216(2)(h) of the Australian Consumer Law and Fair Trading Act 2012 and made under section 216(3) of that Act in relation to a contravention of—

(A) the rooming house provisions; or

(B) section 45 of the Australian Consumer Law and Fair Trading Act 2012; or

(C) section 168 of the Australian Consumer Law (Victoria); or

(D) this Act;

(f) during the period to which the licence relates, in the case of an applicant that
is a body corporate, an officer of the body corporate was an officer of another body corporate (the second-mentioned body corporate) at the time that the second‑mentioned body corporate—

(i) committed an offence referred to in paragraph (d) for which the second‑mentioned body corporate was later convicted or found guilty; or

(ii) contravened a provision referred to in paragraph (e) in relation to which the second-mentioned body corporate was later the subject of an order referred to in that paragraph;

S. 18(1)(g) amended by No. 48/2018 s. 69(1).

(g) during the period to which the licence relates, in the case of an applicant that is a body corporate, an officer of the body corporate was an officer of another body corporate whose licence was cancelled;

S. 18(1)(h) inserted by No. 48/2018 s. 69(2).

(h) in the case of an applicant who is a natural person, during the period to which the licence relates, the person was an officer of a body corporate at the time that the body corporate—

(i) committed an offence referred to in paragraph (d) for which the body corporate was later convicted or found guilty; or

(ii) contravened a provision referred to in paragraph (e) in relation to which the body corporate was later the subject of an order referred to in that paragraph;

S. 18(1)(i) inserted by No. 48/2018 s. 69(2).

(i) in the case of an applicant who is a natural person, during the period to which the licence relates, that person was an officer of a body corporate whose licence was cancelled.

(2) Despite anything to the contrary in subsection (1), a relevant person is not taken to meet a renewal disqualification criterion if, during the period to which the licence relates, the relevant person was convicted or found guilty of an offence referred to in subsection (1)(d) against a provision for which the relevant person was issued or served with an infringement notice under the Infringements Act 2006 and—

(a) the relevant person elected under section 16 of that Act to have the matter heard and determined in the Magistrates' Court; or

(b) the relevant person elected under section 30 of that Act to have the matter heard and determined in the Magistrates' Court.

19 Rooming house operator's licence

(1) A licence—

(a) must be in the form approved by the Authority; and

(b) is personal to the licensee; and

(c) is not transferable to any other person; and

(d) does not vest by operation of law in any other person.

(2) A licensee may operate one or more rooming houses in accordance with one licence.

20 Duration of licence

(1) A licence remains in force until whichever of the following first occurs—

(a) the period specified in the licence ends; or

(b) the licensee's application to renew the licence is refused; or

(c) the licence is cancelled.

S. 20(1A) inserted by No. 1/2021 s. 104.

(1A) If an application for renewal of a licence is made under Division 2 within the period referred to in section 10 and the renewal does not occur before the end of that period, the licence continues in force after the expiry of the licence period until the licence is either renewed or the application is refused.

(2) Despite subsection (1)(b), a licence, in respect of which an application for renewal is made under Division 2, is taken to continue in force, after the expiry of the licence period—

(a) if the licensee does not apply to VCAT for review of the Authority's determination under section 16 to refuse the application for renewal, until the day after the period specified in section 42(3) during which the licensee may apply to VCAT; or

(b) if, within the period specified in section 42(3), the licensee applies to VCAT for review of the Authority's determination under section 16 to refuse the application for renewal, until VCAT determines that application.

(3) For the purposes of subsection (1), the Authority may specify a licence period of—

(a) not more than 3 years, in the case of an initial grant of a licence; and

(b) not less than 3 years and not more than 5 years, in the case of the renewal of a licence.

Division 5—During the course of the licence

21 Ceasing to be fit and proper—notification by licensee

(1) A licensee must notify the Authority, in the form and manner approved by the Authority, within 14 days after becoming aware of any of the following matters—

(a) the licensee meets one or more renewal disqualification criteria;

(b) in the case of a licensee that is a body corporate, an officer of the body corporate meets one or more renewal disqualification criteria;

(c) a manager of a rooming house operated by the licensee meets one or more renewal disqualification criteria.

(2) The Authority must advise the Director of any notification received under subsection (1).

22 Changes to officers or managers—notification by licensee

(1) A licensee must notify the Authority, in the form and manner approved by the Authority, within 14 days after one or more of the following events has occurred—

(a) a person becomes, or ceases to be, a manager of a rooming house operated by the licensee;

(b) in the case of a licensee that is a body corporate, a person becomes, or ceases to be, an officer of the body corporate.

(2) A notification made under subsection (1) in relation to a person who becomes a manager or an officer of the body corporate must include—

(a) in the case of a new manager, the following information—

(iii) the manager's residential address; and

(b) in the case of a new officer, the following information—

(i) the officer's full name;

(ii) the officer's date of birth;

(iii) the officer's residential address;

(iv) the officer's position; and

(c) any other information in relation to the notification required by the Authority.

(3) A notification made under subsection (1) must be accompanied by—

(a) any document or other information required by the Authority—

(i) to verify the identity of the manager or officer, as the case may be; or

(ii) to enable the Authority to ascertain whether the manager or officer (as the case may be) meets any of the licence disqualification criteria; and

(b) the licensee's consent to the Authority checking or verifying any information provided by the licensee under this section; and

(c) the consent of the manager or officer to the Authority verifying the identity of the manager or officer, as the case may be; and

(d) in the case of a body corporate, a declaration by the natural person making the notification that—

(i) the natural person is authorised by all the officers of the body corporate to make the notification on behalf of the body corporate; and

(ii) the information provided in the notification is true and correct; and

(e) in the case of a natural person, a declaration made by the natural person that the information provided in the notification is true and correct; and

(f) the prescribed determination fee.

23 Authority's powers in relation to notification

In considering a notification made under section 22, the Authority may—

(a) conduct any inquiries in relation to the notification that it thinks fit; and

(b) require a relevant person to provide further information in relation to the notification within a specified time; and

(c) require a relevant person to confirm the veracity of any information provided by the relevant person under this Act by means of a statutory declaration within a specified time; and

(d) require a relevant person to provide within a specified time any consent to disclosure of information that the Authority requires for the purpose of performing, or to have performed, a check on the relevant person or on any information included with the notification.

24 Request to Director or others for information following notification

(1) Without limiting section 23, in considering a notification made under section 22, the Authority may request the following persons to provide information in relation to the notification—

(a) the Director;

(b) the Chief Executive Officer of a Council;

(c) the Chief Commissioner of Police.

(2) If the Authority makes a request to the Director or the Chief Executive Officer of a Council under subsection (1), the Director or Chief Executive Officer of a Council (as the case may be)—

(a) may make any inquiries in relation to the notification that the Director or Chief Executive Officer of a Council considers appropriate to enable the proper consideration of the notification; and

(3) If the Authority makes a request to the Chief Commissioner of Police under subsection (1), the Chief Commissioner of Police—

(a) must make any inquiries in relation to the notification that the Chief Commissioner of Police considers appropriate to enable the proper consideration of the notification; and

(4) The Authority may take into account any report received under this section in considering a notification.

25 Failure to provide information or consents

(1) The Authority must refuse to consider a notification made under section 22 if a person fails or refuses to comply with a requirement under section 22(2) or (3) or 23 within the time specified by the Authority.

(2) If the Authority refuses under subsection (1) to consider a notification made under section 22, the Authority must advise the Director and the licensee that the Authority has not determined whether the manager or the officer meets any of the licence disqualification criteria because of a person's failure or refusal to comply with a requirement under section 22(2) or (3) or 23.

26 Determination following notification

(1) After being notified under section 22 that a person has become a manager of a rooming house operated by a licensee or has become an officer of a body corporate that is a licensee, the Authority may determine whether the manager or the officer meets any of the licence disqualification criteria.

(2) The Authority must advise the licensee whether the manager or the officer meets any of the licence disqualification criteria after it makes a determination under subsection (1).

(3) In addition to the requirement of subsection (2), if the Authority determines that the manager or officer meets any of the licence disqualification criteria, the Authority must advise the Director of the determination.

27 Offence to allow certain persons to continue to be officers or manager

(1) In the case of a licensee that is a body corporate, if the Authority has determined under section 26 that one or more of its officers meets any of the licence disqualification criteria, the licensee must ensure any such officer ceases to be an officer of the body corporate as soon as practicable within the time permitted by law in relation to that body corporate after the Authority has advised the licensee of its determination.

(2) If the Authority has determined under section 26 that a manager of a rooming house operated by a licensee meets any of the licence disqualification criteria, the licensee must ensure that the manager ceases to take part in the management of the rooming house within 7 days after the Authority has advised the licensee of its determination.

(3) If the Authority has advised a licensee that is a body corporate that it has not determined under section 26 whether an officer meets any of the licence disqualification criteria because of a person's refusal to comply with a requirement under section 22(2) or (3) or 23, the licensee must ensure that the officer ceases to be an officer of the body corporate as soon as practicable within the time permitted by law in relation to that body corporate after the Authority has advised the licensee of its determination.

(4) If the Authority has advised a licensee that it has not determined under section 26 whether a manager meets any of the licence disqualification criteria because of a person's refusal to comply with a requirement under section 22(2) or (3) or 23, the licensee must ensure that the manager ceases to take part in the management of a rooming house operated by the licensee within 7 days after the Authority has advised the licensee of its determination.

28 Offence to operate rooming house after failure to notify

(1) A licensee must not operate a rooming house if the details of the manager of the rooming house—

(a) were not included in the licensee's application for a licence or renewal of a licence under Division 2; or

(b) were not included in a notification to the Authority under section 22.

(2) A licensee that is a body corporate must not operate a rooming house if the details of an officer of the body corporate—

(a) were not included in the licensee's application for a licence or renewal of a licence under Division 2; or

(b) were not included in a notification to the Authority under section 22.

Division 6—Exceptions to offences against sections 7 and 8

29 Exception to sections 7 and 8—applicant for licence renewal

(1) Despite sections 7 and 8, if a person whose application for renewal of a licence is refused by the Authority applies to VCAT under section 42 for review of the Authority's determination under section 16 within the period specified in section 42(3) and VCAT upholds the Authority's determination and—

S. 29(1)(a) amended by No. 45/2018 s. 377(2).

(a) before, or within 7 days after, VCAT's decision, the person gives each resident a notice to vacate under section 91ZZM or section 142ZR of the Residential Tenancies Act 1997 (as the case requires); and

(b) the person does not withdraw the notice to vacate—

the person does not commit an offence against section 7 or 8 during the period starting on the date that VCAT upholds the Authority's determination and ending 120 days after the date on which the notice to vacate is given.

(2) Despite sections 7 and 8, if a person whose application for renewal of a licence is refused by the Authority does not apply to VCAT under section 42 for review of the Authority's determination under section 16 within the period specified in section 42(3) and—

S. 29(2)(a) amended by No. 45/2018 s. 377(2).

(a) before, or within 7 days after, the period specified in section 42(3), the person gives each resident a notice to vacate under section 91ZZM or section 142ZR of the Residential Tenancies Act 1997 (as the case requires); and

(b) the person does not withdraw the notice to vacate—

the person does not commit an offence against section 7 or 8 during the period starting on the day after the end of the period specified in section 42(3) and ending 120 days after the date on which the notice to vacate is given.

S. 29(3) amended by No. 45/2018 s. 377(3).

(3) A person is not taken to have withdrawn a notice to vacate given to a resident in accordance with subsection (1) or (2) if, after giving that notice to vacate, the person gives the resident another notice to vacate under section 91ZI, 91ZJ, 91ZK, 91ZL, 91ZM, 91ZO, 91ZP, 91ZQ, 91ZT, 91ZV, 142ZB, 142ZC, 142ZD, 142ZE, 142ZF, 142ZG, 142ZH or 142ZI of the Residential Tenancies Act 1997.

Note to s. 29 amended by No. 45/2018 s. 377(4).

A notice to vacate under section 91ZZM of the Residential Tenancies Act 1997 terminates any fixed term tenancy agreement under that Act between the rooming house owner and the resident of the rooming house: see section 91E(2) of that Act.

30 Exception to sections 7 and 8—building owner or lessee

S. 30(1) amended by No. 45/2018 s. 377(5).

(1) Despite sections 7 and 8, if a person who is a lessee or an owner of a building referred to in section 142ZO(2) of the Residential Tenancies Act 1997, or that person's agent, complies with the requirement to give a notice to vacate to each resident in accordance with section 142ZO(4) of that Act within 28 days after becoming aware of an event referred to in section 142ZO(1) of that Act, that person does not commit an offence against section 7 or 8 during the period—

(a) starting on the date that the lease is terminated or the building is abandoned (as the case may be); and

(b) ending on the date specified in the notice to vacate.

S. 30(2) amended by No. 45/2018 s. 377(6).

(2) Despite sections 7 and 8, if a person who is a lessee or an owner of a building referred to in section 142ZO(3) of the Residential Tenancies Act 1997 applies for a licence within 28 days after becoming aware of an event referred to in section 142ZO(1) of that Act, that person does not commit an offence against section 7 or 8—

(a) if the licence is granted by the Authority, during the period—

(i) starting on the date that the lease is terminated or the building is abandoned (as the case may be); and

(ii) ending on the day that the Authority grants licence; or

(b) if the Authority refuses to grant the licence and the person does not apply under section 42 for review of the Authority's determination under section 16, during the period—

(i) starting on the date that the lease is terminated or the building is abandoned (as the case may be); and

(ii) ending on the day after the end of the period specified in section 42(3); or

(c) if the Authority refuses to grant the licence and the person applies under section 42 for review of the Authority's determination under section 16 within the period specified in section 42(3), during the period—

(i) starting on the date that the lease is terminated or the building is abandoned (as the case may be); and

(ii) ending on the day after the day on which VCAT upholds the Authority's determination.

S. 30(3) amended by No. 45/2018 s. 377(7).

(3) Without limiting subsection (2), despite sections 7 and 8, if a person who is a lessee or an owner of a building referred to in section 142ZO(3) of the Residential Tenancies Act 1997 is refused a licence, that person does not commit an offence against section 7 or 8 if that person, or that person's agent, complies with the requirement to give a notice to vacate to each resident in accordance with section 142ZO(4) of that Act—

(a) if the person does not apply under section 42 for review of the Authority's determination under section 16, during the period—

(i) starting on or before the day after the end of the period specified in section 42(3); and

(ii) ending on the date specified in the notice to vacate; or

(b) if the person applies under section 42 for review of the Authority's determination under section 16 within the period specified in section 42(3) and VCAT upholds the Authority's determination, during the period—

(i) starting on the day after the day on which VCAT upholds the Authority's determination; and

(ii) ending on the date specified in the notice to vacate.

Part 4—Disciplinary hearings, licence cancellations and protective orders

31 Hearing to determine whether to take disciplinary action under section 33

(1) The Director may apply at any time to VCAT to conduct a hearing to determine whether there are grounds for taking disciplinary action under section 33 against a licensee.

(2) Within 28 days after an application is made under subsection (1), VCAT must—

(a) in relation to grounds referred to in section 32(a)(i) or (b)(i), complete and determine a hearing; and

(b) in relation to any other grounds referred to in section 32, commence a hearing.

32 Grounds for taking disciplinary action under section 33

There are grounds for taking disciplinary action under section 33 against a licensee if VCAT is satisfied that—

(a) a relevant person—

(i) meets any of the licence disqualification criteria or renewal disqualification criteria; or

(ii) has permitted a person who meets one or more of the licence disqualification criteria (other than being an insolvent under administration) to be involved in the operation of any rooming house operated by the licensee; or

(iii) has contravened this Act or the regulations (whether or not the relevant person has been convicted or found guilty of an offence against this Act or the regulations); or

(iv) has contravened the rooming house provisions (whether or not the relevant person has been convicted or found guilty of an offence against the rooming house provisions); or

(v) in relation to a rooming house operated by the licensee, has engaged in conduct, or has permitted another to engage in conduct, to the detriment of the safety of the residents or the quiet enjoyment of the rooming house by the residents or to the detriment of the safety, operation or amenity of the rooming house; or

(vi) in relation to a rooming house operated by the licensee, has engaged in conduct, or has permitted another to engage in conduct, that discourages a resident from exercising rights under the Residential Tenancies Act 1997; or

(b) the licensee—

(i) has failed to comply with an order of VCAT made under section 33; or

(ii) for any other reason not referred to in this section, is not a suitable person to hold a licence; or

(c) an associate of a relevant person—

(i) in relation to a rooming house operated by the licensee, has engaged in conduct, or has permitted another to engage in conduct, to the detriment of the safety of the residents or the quiet enjoyment of the rooming house by the residents or to the detriment of the safety, operation or amenity of the rooming house; or

(ii) in relation to a rooming house operated by the licensee, has engaged in conduct, or has permitted another to engage in conduct, that discourages a resident from exercising rights under the Residential Tenancies Act 1997; or

(iii) has engaged in other conduct that demonstrates that the licensee is not a suitable person to hold a licence.

33 Disciplinary powers of VCAT—orders

(1) If VCAT is satisfied that there are grounds under section 32 for taking action against a licensee under this section, VCAT may make any order it considers appropriate, including—

(a) an order to do one or more of the following—

(i) require the licensee to comply with a requirement specified by VCAT within, or for, a specified time;

(ii) require the licensee to enter into an undertaking to perform, or not to perform, certain tasks specified in the undertaking;

(iii) require the licensee to pay a penalty not exceeding $10 000 by a specified date;

(iv) impose any condition on the licence held by the licensee;

(v) cancel the licence held by the licensee;

S. 33(1)(b) substituted by No. 48/2018 s. 70.

(b) an order under this section to do anything described in an order referred to in section 34(3).

(2) Subject to subsection (3), in determining whether to make an order under subsection (1), VCAT must regard the paramount consideration as being—

(a) the need to reduce exploitative and undesirable practices within the rooming house sector; and

(b) the need to hold licensed rooming house operators to account for their conduct and the conduct of persons involved in the management or operation of their rooming houses.

(3) If VCAT is satisfied that a relevant person in relation to a licence meets one or more licence disqualification criteria or renewal disqualification criteria, VCAT must make an order cancelling the licence.

(4) If a licensee fails to pay a penalty imposed under an order referred to in subsection (1)(a)(iii) within the specified time, VCAT, without giving the licensee an opportunity to be heard, may cancel the licence.

(5) If VCAT cancels a licence under this section—

(a) the cancellation takes effect on the date specified by VCAT in the order; and

(b) VCAT must give a written notice to the Secretary to the Department of Health and Human Services stating—

(i) the date that the order to cancel the licence takes effect; and

(ii) the details of any order made by VCAT under section 33(1)(b) in relation to the licensee.

(6) In this section, a reference to a licensee includes a reference to a former licensee.

34 Protective orders

(1) The Director may make an application to VCAT for VCAT to make an order under this section if the Authority refuses to renew a licensee's licence under section 16.

(2) VCAT must hear an application made under subsection (1) as soon as practicable after the period specified in section 42(3) during which the licensee may apply to VCAT.

(3) If VCAT considers it appropriate, VCAT may make one or more of the following protective orders—

(a) an order requiring the licensee to comply with a requirement specified by VCAT within, or for, a specified time;

(b) an order requiring the licensee to enter into an undertaking to perform, or not to perform, certain tasks specified in the undertaking;

(c) any other order for the purpose of protecting the residents of a rooming house operated by the licensee, including an order that requires the licensee, within the period specified by VCAT—

(i) to notify each resident of a rooming house operated by the licensee that—

(A) the rooming house is to be closed at a specified date; or

(B) the rooming house is to be operated by a different person from a specified date; or

S. 34(3)(c)(ii) amended by No. 45/2018 s. 377(8).

(ii) to give each resident of a rooming house operated by the licensee a notice to vacate under section 91ZZL or section 142ZQ of the Residential Tenancies Act 1997 (as the case requires) by the date specified in the notice, being not more than 120 days after the end of the period within which the notice is to be given; or

(iii) to refund to a resident of a rooming house any payment of rent made in advance by that resident.

(4) A reference to a licensee in subsection (3) includes a reference to a former licensee.

Note to s. 34 amended by No. 45/2018 s. 377(9).

A notice to vacate under section 91ZZL of the Residential Tenancies Act 1997 terminates any fixed term tenancy agreement under that Act between the rooming house owner and the resident of the rooming house: see section 91E(2) of that Act.

35 Evidence that VCAT may take into account

VCAT may consider the following kinds of evidence during the conduct of a hearing under section 31 or in respect of an application under section 34—

(a) complaints received by the Director in relation to a relevant person, or an associate of a relevant person;

(b) information provided by the Chief Commissioner of Police to the Director in relation to a relevant person, an associate of a relevant person or the operation of a rooming house;

(c) findings of fact made by any court or VCAT relating to a relevant person or an associate of a relevant person;

(d) orders of VCAT relating to tenancy or residency disputes between residents of rooming houses and rooming house operators;

(e) findings, comments or recommendations made by a coroner under the Coroners Act 2008;

(f) evidence provided by a housing, tenancy or legal advocacy organisation;

(g) information concerning the factual circumstances which resulted in an infringement notice being issued or served in relation to provisions referred to in section 18(1).

Nothing in paragraph (g) is taken to limit the operation of section 33 of the Infringements Act 2006.

36 Endorsement of licence

(1) If VCAT imposes a condition on a licence under section 33(1)(a)(iv), the licensee must produce the licence to the Authority for endorsement of the condition within 14 days after the condition is imposed.

(2) The Authority may endorse a condition on a licence produced to the Authority under subsection (1).

37 Return of licence

If VCAT cancels a licence under section 33, the person to whom the licence was issued must return the licence to the Authority within the period specified by VCAT in the order, or within the period of 14 days after the cancellation, whichever is shorter.

S. 38 (Heading) amended by No. 45/2018 s. 377(10).

38 Residential rental agreements and residency rights—cancellation of licence or failure to renew licence

S. 38(1) amended by No. 45/2018 s. 377(11).

(1) A residential rental agreement within the meaning of section 3(1) of the Residential Tenancies Act 1997 does not terminate merely because—

(a) the Authority refuses to grant a licence or to renew a licence under section 16; or

(b) a licence expires; or

(c) VCAT cancels a licence under this Part.

Note to s. 38(1) amended by No. 45/2018 s. 377(12).

See Subdivision 1 of Division 9 of Part 2 of the Residential Tenancies Act 1997.

(2) A residency right within the meaning of section 3(1) of the Residential Tenancies Act 1997 does not end merely because—

(a) the Authority refuses to grant a licence or to renew a licence under section 16; or

(b) a licence expires; or

(c) VCAT cancels a licence under this Part.

Note to s. 38(2) amended by No. 45/2018 s. 377(13).

See Subdivision 1 of Division 10 of Part 3 of the Residential Tenancies Act 1997.

Part 5—Other licensing matters

39 Displaying licence at rooming house

(1) A licensee must ensure that a copy of the licence is displayed in a conspicuous place inside the front entrance of each rooming house that is operated by the licensee.

(2) If a licence is endorsed with a condition imposed by VCAT, the licensee must ensure that a copy of the licence as endorsed is displayed in accordance with subsection (1).

40 Change in details of application for licence or renewal of licence

If a material change occurs in any of the details provided in, or in relation to, an application for a licence or a renewal of a licence, the licensee must give to the Authority, in the manner and form approved by the Authority, notice of the change within 14 days after the licensee becomes aware of the change.

41 Death, disability, etc. of licensee

(1) The following persons may operate one or more rooming houses (which were operated by a person who was a licensee) for a period of 150 days immediately after the person ceases to be a licensee—

(a) if the person who was the licensee dies, the executor named in the deceased person's will or the administrator of the person's estate or any person who intends applying for letters of administration in relation to the deceased person's estate;

(b) if the person who was the licensee becomes an insolvent under administration, the assignee, trustee or receiver of the person;

S. 41(1)(c) amended by No. 13/2019 s. 221(Sch. 1 item 44).

(c) if the person who was the licensee becomes a represented person within the meaning of the Guardianship and Administration Act 2019, the guardian or administrator of the person or any person nominated by the guardian or administrator;

(d) if the person who was the licensee becomes an externally administered body corporate, the liquidator, official manager, receiver, receiver and manager or other external administrator.

(2) A person who is authorised to operate a rooming house under subsection (1) may apply to the Authority within the 150 day period for permission to operate a rooming house for a longer period and, during this longer period, may apply to the Authority for permission to operate a rooming house for a further period.

(3) If a person makes an application under
subsection (2), the person may continue to operate a rooming house until the Authority determines the application.

(4) The Authority may grant an application under subsection (2) if it is satisfied that it is not contrary to the public interest to do so.

(5) The Authority, at any time—

(a) may withdraw any permission it has granted under subsection (4); or

(b) may limit the permission to operate the rooming house in any way it thinks appropriate; or

(c) may impose, revoke or vary any condition on the permission it thinks appropriate to ensure the ongoing protection of the public interest.

(6) A person who has been granted a permission under subsection (4) must comply with any limitation or condition that applies to the permission.

(7) Subject to subsection (5), a person who operates a rooming house under this section is taken, for the purposes of this Act, to be a licensed rooming house operator on the same terms and conditions as applied to the former licensee.

42 Application for review

(1) A person whose application for a licence or for renewal of a licence is refused may apply to VCAT for review of a determination under section 16 to refuse the application on the ground that the determination is based on an error of fact in relation to whether a relevant person meets any of the licence disqualification criteria or renewal disqualification criteria, as the case may be.

(2) A licensee may apply to VCAT for review of a determination by the Authority under section 26 that a manager of a rooming house operated by the licensee, or that an officer of a body corporate that is the licensee, meets any of the licence disqualification criteria on the ground that the determination is based on an error of fact.

(3) An application for review may only be made within 28 days after the later of—

(a) the date on which the determination is made under section 16 or 26; or

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the determination made under section 16 or 26, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

43 Register of Licensed Rooming House Operators

(1) The Licensing Registrar must establish and keep a register to be called the Register of Licensed Rooming House Operators.

(2) The purposes of the Register are—

(a) to record information about licensees and other persons regulated by this Act; and

(b) to record information about applications for licences and for renewal of licences, including applications that were refused; and

(c) to record information about licences that were cancelled by VCAT and any conditions imposed on licences; and

(d) to record decisions and determinations made, and permissions granted, by the Authority under this Act; and

(e) subject to section 17A of the Business Licensing Authority Act 1998, to make the information collected for the purposes of the Register available to the public; and

(f) to enable the Director and the Authority to provide information to licensees and other persons affected by this Act.

(3) The Licensing Registrar must record in the Register the following information in respect of each licensee—

(a) the licensee's full name and licence number;

(b) the residential address of the licensee, in the case of a natural person;

(c) the address of the registered office of the licensee, in the case of a body corporate;

(d) the licensee's ABN or ACN, if applicable;

(e) the date on which the licence was granted or renewal of the licence was granted and the expiry date of the licence;

(f) if applicable, the date on which the licence was cancelled;

(g) details of any condition to which the licence is subject;

(h) details of any court order or VCAT order affecting the licence of which the Authority has notice;

(i) if the licensee is a body corporate, the name of each officer of the body corporate;

(j) if the licensee has one or more rooming houses in relation to which a manager is employed or engaged or proposed to be employed or engaged, the name of each manager;

(k) any other prescribed matter.

(4) A person may search and take a copy of an extract from, or a copy of, the Register on payment of the prescribed fee (if any).

(5) A person may obtain a certified extract from, or a certified copy of, the Register on the payment of the prescribed fee (if any).

(6) Subject to section 17A of the Business Licensing Authority Act 1998, the Licensing Registrar may keep and publish the Register in any form that the Licensing Registrar thinks fit.

44 Publication of information

(1) The Licensing Registrar must publish on the Internet the following information in respect of each licensee—

(a) the name of the licensee;

(b) the ABN or ACN of the licensee, if applicable;

(c) the date on which the licence was granted;

(d) the expiry date of the licence;

(e) any other prescribed information.

(2) The Licensing Registrar must publish on the Internet the following information in respect of each licence that is cancelled or that the Authority refuses to renew—

(a) the name of the former licensee;

(b) the ABN or ACN of the former licensee, if applicable;

(c) the date on which the licence was cancelled or on which the application for renewal was refused;

(d) the grounds on which the licence was cancelled or refused to be renewed.

Part 6—Enforcement

Division 1—Preliminary

45 Production of identity card

An inspector must produce the inspector's identity card for inspection—

(a) before exercising a power under this Part, other than a power exercised by way of post; and

(b) at any time during the exercise of a power under this Part, if asked to do so.

Penalty: 10 penalty units.

Division 2—Inspection of documents and records

46 Documents to be available for inspection

(1) A licensee must, at all reasonable times at each place at which the licensee conducts the business of operating a rooming house, keep all documents relating to the business available for inspection by an inspector in a form in which they can readily be inspected.

(2) If the licence of a licensee, in the last 3 years, has expired, has not been renewed or has been cancelled, the former licensee must make all documents relating to the former business of operating a rooming house available for inspection by an inspector in a form and at a place where they can readily be inspected.

47 Licensee or specified persons to produce documents and answer questions

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may, at a time and place specified by the inspector, require a licensee, a specified person or other person with control over relevant documents and information—

(a) to answer, orally or in writing, any questions put by the inspector relating to the licensee's business of operating a rooming house; or

(b) to supply, orally or in writing, information required by the inspector relating to that business; or

(c) to produce to the inspector specified documents or documents of a specified class relating to that business.

(2) In this section—

specified person, in relation to a business of operating a rooming house, means—

(a) a former licensee; or

(b) in the case of a body corporate that is or was a licensee, an officer of the body corporate.

48 Third parties to produce documents and answer questions relating to business of operating a rooming house

For the purpose of monitoring compliance with this Act or the regulations, an inspector may require any person who has possession, custody or control of documents relating to a licensee's business of operating a rooming house—

(a) to answer, orally or in writing, any questions put by the inspector relating to the licensee's business of operating a rooming house; or

(b) to supply, orally or in writing, information required by the inspector relating to that business; or

(c) to produce to the inspector specified documents or documents of a specified class relating to that business.

49 Specified public bodies to produce information

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may request that, within a time specified by the inspector, a specified public body do either or both of the following—

(a) answer, orally or in writing, any questions put by the inspector relating to a licensee's business of operating a rooming house;

(b) supply, orally or in writing, information required by the inspector relating to the business.

(2) An inspector may only make a request under subsection (1) with the written consent of the Director.

(3) A specified public body (other than the Chief Commissioner of Police) must comply with a request under subsection (1).

(4) The Chief Commissioner of Police may comply with a request under subsection (1), but is not obliged to do so.

(5) The Chief Commissioner of Police must provide a response in relation to a decision to comply or to not comply with a request under subsection (1).

(6) In this section—

public statutory authority means a body established by or under an Act for a public purpose;

specified public body means—

(a) a Department Head within the meaning of the Public Administration Act 2004; or

(b) a public statutory authority; or

(c) a Council; or

(d) the Chief Commissioner of Police.

50 Certain other specified persons or bodies to produce information

(1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may require a specified person or body within a time specified by the Director or inspector—

(a) to answer, orally or in writing, any questions put by the inspector relating to a licensee's business of operating a rooming house; and

(b) to supply, orally or in writing, information required by the inspector relating to that business.

(2) An inspector may only make a requirement under subsection (1) with the written consent of the Director.

(3) A specified person or body must comply with a request under subsection (1).

(4) In this section—

specified person or body means—

(a) a person who is a publisher of a publication; or

(b) a person who is the owner or operator of a broadcasting service; or

(c) a person who is the owner or operator of a telecommunications service; or

(d) a person who is the owner or operator of a postal service.

51 ADIs to produce documents and information

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector, by written notice served on an ADI, may require the ADI to produce for inspection or copying by the inspector any documents or other information specified in the notice that the inspector reasonably believes to be relevant to the monitoring of compliance.

(2) An ADI must, without charge, comply with a notice under subsection (1) despite any duty of confidentiality or any law relating to confidentiality to the contrary.

52 Powers on production of documents

If any documents are produced to an inspector under this Division, the inspector may do any one or more of the following—

(a) inspect the documents or authorise a person to inspect the documents;

(b) make copies of, or take extracts from, the documents;

(c) seize the documents if the inspector—

(i) considers the documents necessary for the purpose of obtaining evidence for use in any proceedings or proposed proceedings under any Consumer Act; or

(ii) believes on reasonable grounds that it is necessary to seize the documents in order to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act;

(d) secure any seized documents against interference;

(e) retain possession of the documents.

53 Where must documents be produced?

An inspector may require a person to produce a document—

(a) at the person's place of business; or

(b) at the office of the Director; or

(c) with the consent of the person, at any other place.

54 Order requiring supply of information and answers to questions

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring any person at a time and place specified by the inspector—

(a) to answer, orally or in writing, any questions put by the inspector relating to a licensee's business of operating a rooming house; or

(b) to supply, orally or in writing, information required by the inspector relating to a licensee's business of operating a rooming house.

(2) If the Magistrates' Court is satisfied on the basis of evidence presented by the inspector that the order is necessary for the purpose of monitoring compliance with this Act or the regulations, the Court may grant the order sought.

(3) An order under this section must state a date, not later than 28 days after the making of the order, on which the order ceases to have effect.

(4) An inspector who executes an order under this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.

55 Service of documents

(1) A written requirement by an inspector under this Division may be given personally or by registered post to a person—

(a) at the last known place of business, employment or residence of the person; or

(b) in the case of a company, at the registered office of the company.

(2) A person who provides a document or information in response to a requirement of an inspector under this Division may send that document or information to the Director by registered post.

Division 3—Entry, search and seizure

56 Entry or search with consent

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector, with the consent of the occupier of the premises, may—

(a) enter and search the premises; and

(b) examine and seize any thing found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; and

(c) inspect and make copies of, or take extracts from, any document found on the premises; and

(d) make any still or moving image, audio recording or audio-visual recording.

(2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector—

(a) has produced the inspector's identity card for inspection; and

(b) has informed the occupier of the purpose of the search and that—

(i) the occupier may refuse to give consent to the entry and search or to the seizure of any thing found during the search; and

(ii) the occupier may refuse to consent to the taking of any copy of, or extract from, a document found on the premises during the search; and

(iii) any thing seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.

(3) If an occupier consents to an entry and search, the inspector who requested consent must, before entering the premises, ask the occupier to sign an acknowledgement stating the inspector has complied with the requirements set out in subsection (2).

(4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must, before seizing or taking the thing, ask the occupier to sign an acknowledgement stating—

(a) that the occupier has consented to the seizure or taking of the thing; and

(b) the date and time that the occupier consented.

(5) An occupier who signs an acknowledgement must be given a copy of the signed acknowledgement before the inspector leaves the premises.

(6) In this section—

occupier, in relation to a premises that is a room in a rooming house occupied by one or more residents of the rooming house, means the resident of that room or, if there is more than one resident, all the residents occupying that room.

57 Entry of premises open to the public

An inspector may enter and inspect any part of a premises that at the time of entry and inspection is open to the public.

58 Entry without consent or warrant

(1) Subject to subsection (2), for the purpose of monitoring compliance with this Act or the regulations, an inspector may do all or any of the following—

(a) enter and search, at any time between the hours of 9 a.m. and 5 p.m., any premises at which a licensee is conducting a business of operating a rooming house;

(b) seize or secure against interference any thing that the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations that is found in or on the premises;

S. 58(1)(c) amended by No. 48/2018 s. 71(1).

(c) inspect and make copies of, or take extracts from, any document kept in or on the premises;

S. 58(1)(d) inserted by No. 48/2018 s. 71(2).

(d) make any still or moving image, audio recording or audio-visual recording.

(2) For the purposes of subsection (1)—

premises excludes any room of a rooming house in which a person resides, other than a room in the rooming house in which the rooming house operator resides and from which the rooming house operator operates the rooming house.

59 Search warrants

(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector believes on reasonable grounds that there is on the premises evidence that a person may have contravened this Act or the regulations.

(2) An application under subsection (1) must not be made without the written approval of the Director.

S. 59(3) amended by No. 6/2018 s. 68(Sch. 2 item 110).

(3) If a magistrate is satisfied by evidence, on oath or by affirmation or by affidavit, that there are reasonable grounds to believe that there is on the premises a thing, or a thing of a particular kind, connected with a contravention of this Act or the regulations, the magistrate may issue the search warrant in accordance with the Magistrates' Court Act 1989.

60 Form and content of search warrants

(1) A search warrant issued under section 59(3) may authorise the inspector named in the warrant together with a police officer or any other person or persons named or otherwise identified in the warrant and with any necessary equipment to do any of the following—

(a) to enter the premises specified in the warrant, by force if necessary; and

(b) if the inspector believes on reasonable grounds that a thing, or thing of a particular kind, named or described in the warrant is connected with a contravention of this Act or the regulations—

(i) to search for the thing; and

(ii) to seize the thing; and

(iii) to secure the thing against interference; and

(iv) to examine and inspect the thing; and

(v) to make copies of, or take extracts from, the thing.

(2) A search warrant issued under section 59(3) must state—

(a) the purpose for which the search is required; and

(b) any condition to which the warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(3) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under section 59(3).

61 Announcement before entry

(1) On executing a search warrant, the inspector executing the warrant—

(a) must announce that the inspector is authorised by the warrant to enter the premises; and

(b) must give any person at the premises an opportunity to allow entry to the premises.

(2) An inspector need not comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

(3) If the occupier is present at premises where a search warrant is being executed, the inspector must—

(a) produce the inspector's identity card to the occupier; and

(b) give to the occupier a copy of the warrant.

(4) If the occupier is not present at premises where a search warrant is being executed, the inspector must—

(a) produce the inspector's identity card to a person (if any) at the premises; and

(b) give to the person a copy of the warrant.

62 Seizure of things not described in the warrant

A search warrant under section 59 authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize any thing which is not of the kind described in the warrant if—

(a) the inspector believes, on reasonable grounds, that the thing—

(i) is of a kind which could have been included in a search warrant issued under this Division; or

(ii) is evidence of a contravention of any Consumer Act; and

(b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act.

63 Embargo notice

(1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue a notice in the prescribed form—

(a) by causing a copy of the notice to be served on the occupier; or

(b) if the occupier cannot be located after all reasonable steps have been taken to do so, by attaching a copy of the notice to the thing in a prominent position.

(2) Subject to subsection (3), a person who knows that a notice relates to a thing must not, without the written consent of the inspector who issued the notice, sell, lease, transfer, move, dispose of or otherwise deal with the thing or any part of the thing.

(3) Subsection (2) does not apply to a person who moved the thing or the part of the thing for the purpose of protecting and preserving it.

(4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.

64 Inspector may monitor compliance with embargo notice

(1) For the purpose of monitoring compliance with an embargo notice, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for—

(a) an order requiring the owner of the thing to which an embargo notice relates, or the occupier of the premises where the thing is kept or required under the notice to be kept, to answer questions or produce documents at a time and place specified by the inspector; and

(b) any other order incidental to, or necessary for, monitoring compliance with the embargo notice or with section 63(2).

(2) The Magistrates' Court may make the order sought under subsection (1)(a) or (b).

65 Search warrants in relation to embargo notice

(1) If a thing is subject to an embargo notice, an inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant permitting entry to the premises where the thing is kept or required to be kept for the purposes of monitoring compliance with an embargo notice.

S. 65(2) amended by No. 6/2018 s. 68(Sch. 2 item 110).

(2) The magistrate may issue the search warrant in accordance with the Magistrates' Court Act 1989 if the magistrate is satisfied by evidence, on oath or by affirmation or by affidavit, of the inspector that the warrant is necessary for the effective monitoring of compliance with an embargo notice.

(3) A search warrant issued under subsection (2) may authorise the inspector, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—

(a) to enter the premises specified in the warrant, by force if necessary; and

(b) to search for, seize and secure against interference the thing named in the warrant.

(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to search warrants issued under subsection (2).

66 Retention and return of seized documents or things

(1) If an inspector retains possession of a document seized from a person under this Division, the inspector must, within 21 days after the seizure, give the person a copy of the document certified as correct by the inspector.

(2) A copy of a document certified under subsection (1) must be received in all courts and VCAT to be evidence of equal validity to the original.

(3) If an inspector seizes a document or other thing under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

(4) If a document or thing seized by an inspector under this Division has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless—

(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

(b) the Magistrates' Court makes an order under section 67 extending the period during which the document or thing may be retained.

67 Magistrates' Court may extend 3 month period

(1) An inspector may apply to the Magistrates' Court for an extension (not exceeding 3 months) of the period during which a seized document or thing may be retained—

(a) within 3 months after the document or thing is seized under this Division; or

(b) if an extension has been granted under this section, before the end of the period of the extension.

(2) The Magistrates' Court may make an order extending the period if it is satisfied that the total period of retention does not exceed 12 months and retention of the document or other thing is necessary—

(a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or

(b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act.

(3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person.

68 Requirement to assist inspector during entry

(1) An inspector exercising a power of entry under this Division may require the occupier of the premises or an agent or employee of the occupier to do any one or more of the following—

(a) give information to the inspector, orally or in writing;

(b) produce documents to the inspector;

(c) give reasonable assistance to the inspector.

(2) A person must not, without reasonable excuse, fail to comply with a requirement of an inspector under this section.

Division 4—General enforcement matters

69 Offence to give false or misleading information

(1) A person must not give information to an inspector under this Part that the person believes to be false or misleading in a material particular.

(2) A person must not produce a document to an inspector under this Part that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

70 Confidentiality

(1) An inspector must not give to any other person any information acquired by the inspector in the carrying out of the inspector's functions under this Part unless the giving of information is authorised under this section.

(2) An inspector may give information acquired by the inspector in carrying out a function under this Part in any of the following circumstances—

(a) if the giving of the information is reasonably necessary for the inspector to perform the inspector's functions under this Part;

(b) if the giving of the information is to a court or VCAT in the course of legal proceedings;

(c) if the giving of the information is under an order of a court or VCAT;

(d) if the giving of the information is to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth;

(e) if the giving of the information is to the Authority;

(f) if the giving of the information is with the written authority of the Director;

(g) if the giving of the information is with the written authority of the person to whom the information relates.

71 Infringements

(1) An inspector may serve an infringement notice on a person in respect of a prescribed offence if the inspector has reason to believe that the person committed the offence.

(2) An offence prescribed under subsection (1) is an infringement offence within the meaning of the Infringements Act 2006.

(3) The infringement penalty for an offence referred to in subsection (1) is the prescribed penalty for the offence.

72 Protection against self-incrimination

(1) It is a reasonable excuse for a natural person to refuse or fail to give information, or do any other thing that the person is required to do, under this Part if the giving of the information or the doing of the thing would tend to incriminate the person.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce under this Part if the production of the document would tend to incriminate the person.

73 Complaints

(1) A person may complain to the Director about the exercise of a power by an inspector under this Part.

(2) The Director must investigate any complaint received under this section and provide a written report on the results of the investigation to the complainant.

Part 7—General

74 Application of Australian Consumer Law and Fair Trading Act 2012

(1) Sections 125, 126, 152, 172, 173, 176 and 178 of the Australian Consumer Law and Fair Trading Act 2012 apply (with any necessary modifications) in relation to the exercise or attempted exercise of a power of an inspector under Part 6 of this Act as if any reference in those sections to Part 6.4 of that Act were a reference to Part 6 of this Act.

(2) Sections 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act and any regulations made under this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act and any regulations made under this Act.

(3) For the purposes of subsection (2)—

(a) section 210 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference in that section to Part 3.1, Part 4.1 or Part 6.3 of the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act and any regulations made under this Act;

(b) section 212 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference to prescribed proceedings were a reference to—

(i) a proceeding for an offence against a provision of this Act or any regulations made under this Act; or

(ii) proceedings on an application for an injunction under section 201, 202, 203, 205 or 206 of the Australian Consumer Law and Fair Trading
Act 2012 (as applied by subsection (2)) against a person alleged to have contravened a provision of this Act or any regulations made under this Act; or

(iii) proceedings on an application for an order under section 216, or for damages under section 217, of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (2)).

75 Evidence

In any proceeding for an offence against this Act, evidence that a person or body corporate is a registration holder in respect of a rooming house within the meaning of the Public Health and Wellbeing Act 2008 is evidence that the person or the body corporate is a rooming house operator.

76 Who may commence proceedings?

(1) Proceedings for an offence against this Act or the regulations may only be commenced by—

(a) the Director; or

(b) a person authorised by the Director for the purposes of this section.

(2) In any proceeding commenced for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person commencing the proceeding was authorised to do so.

77 Extension of time for prosecutions

Despite anything to the contrary in any Act, a proceeding for an offence against this Act may be commenced within 3 years after the date on which the offence is alleged to have been committed.

78 Service of documents

(1) This section applies subject to section 55.

(2) For the purposes of this Act and the regulations, a document may be served on a licensee who is a natural person by—

(a) giving it to the licensee personally; or

(b) leaving it at the licensee's place of residence with someone who apparently resides there and is over 16 years of age; or

(c) leaving it at the licensee's principal place of business with someone who is apparently employed there and over 16 years of age; or

(d) posting it in a letter addressed to the licensee at the address last known to the Director as the licensee's place of residence or principal place of business.

(3) For the purposes of this Act and the regulations, a document may be served on a licensee that is a company by—

(a) giving it to a director or a secretary of the company, or to any other person concerned in the management of the company personally; or

(b) leaving it at the registered office or principal place of business of the company with someone who is apparently employed there and is over 16 years of age; or

(c) posting it in a letter addressed to the company at the address last known to the Director as the company's registered office or principal place of business.

79 Money required to be paid into the Victorian Property Fund

The following money must be paid into the Victorian Property Fund established under section 72 of the Estate Agents Act 1980—

(a) any fee payable to the Authority under this Act;

(b) any penalty or infringement penalty payable under this Act;

(c) all other money required to be paid into the Fund under this Act.

S. 79A inserted by No. 48/2018 s. 72.

79A Licensing Registrar may waive or reduce fees

The Licensing Registrar may waive or reduce fees in a particular case or class of cases.

80 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstances.

(3) Regulations with respect to fees—

(a) may provide for different fees for different classes of—

(i) application for a licence; and

(ii) application for a renewal of a licence; and

(iii) determination made by the Authority following a notification under section 22; and

(b) may provide for fees that vary according to the period of time for which a licence is granted or renewed; and

(c) may provide for the means of payment of fees.

(4) Without limiting subsection (3), the regulations may provide for the calculation of fees based on the number and category of persons that the Authority is required to consider in relation to the licence disqualification criteria or renewal disqualification criteria for the purpose of determining applications and notifications made under the Act.

Part 8—Transitional provisions and consequential amendments

Division 1—Transitional provisions

81 Definitions

In this Division—

application period means the period of 120 days commencing on the day that sections 7 and 8 come into operation;

existing rooming house operator means a rooming house operator who—

(a) operated a rooming house immediately before the application period; and

(b) operates a rooming house during the application period.

82 Application of sections 7 and 8 to existing rooming house operators

(1) Sections 7 and 8 do not apply to an existing rooming house operator if the existing rooming house operator—

(a) before the start of the application period, gives each resident of a rooming house operated by the existing rooming house operator immediately before the application period, a notice to vacate the room occupied by the resident; and

(b) does not withdraw that notice to vacate.

(2) Sections 7 and 8 do not apply to an existing rooming house operator who makes an application for a licence during the application period—

(a) if that application is refused by the Authority under section 16 and—

(i) the existing rooming house operator does not apply to VCAT under section 42 for a review of the Authority's determination under section 16; and

(ii) before, or within 7 days after, the period specified in section 42(3), the existing rooming house operator gives each resident a notice to vacate under section 268B or section 290B of the Residential Tenancies Act 1997 (as the case requires), until the date that is 120 days after the date on which the notice is given; and

(iii) the existing rooming house operator does not withdraw that notice to vacate; or

(b) if that application is refused by the Authority under section 16 and—

(i) the existing rooming house operator applies under section 42 for review of the Authority's determination under section 16 and VCAT upholds the Authority's determination; and

(ii) before, or within 7 days after, VCAT's decision to uphold the Authority's determination, the existing rooming house operator gives each resident a notice to vacate under section 268B or section 290B of the Residential Tenancies Act 1997 (as the case requires), until the date that is 120 days after the date on which the notice is given; and

(iii) the existing rooming house operator does not withdraw that notice to vacate; or

(c) if the Authority grants the existing rooming house operator a licence under section 16, until the day that the licence is granted.

(3) Subject to subsection (4), sections 7 and 8 do not apply to the following persons in relation to an existing rooming house operator for a period of 150 days starting on the day immediately after the existing rooming house operator ceases to operate a rooming house—

(a) if the person who was the existing rooming house operator dies, the executor named in the deceased person's will or the administrator of the person's estate or any person who intends applying for letters of administration in relation to the deceased person's estate;

(b) if the person who was the existing rooming house operator becomes an insolvent under administration, the assignee, trustee or receiver of the person;

S. 82(3)(c) amended by No. 13/2019 s. 221(Sch. 1 item 44).

(c) if the person who was the existing rooming house operator becomes a represented person within the meaning of the Guardianship and Administration Act 2019, the guardian or administrator of the person or any person nominated by the guardian or administrator;

(d) if the person who was the existing rooming house operator becomes an externally administered body corporate, the liquidator, official manager, receiver, receiver and manager or other external administrator.

(4) A person who is referred to in subsection (3)—

(a) must give, within 30 days after the existing rooming house operator ceases to operate a rooming house, each resident of a rooming house (operated by the existing rooming house operator immediately before that cessation) a notice to vacate under section 263, 268B, 288 or 290B of the Residential Tenancies Act 1997 (as the case requires); and

(b) must not withdraw that notice to vacate.

A notice to vacate under section 268B of the Residential Tenancies Act 1997 terminates any fixed term tenancy agreement under that Act between the rooming house owner and the resident of the rooming house: see section 219(2) of that Act.

(5) A person who is referred to in subsection (1), (2) or (3) is not taken to have withdrawn a notice to vacate given to a resident in accordance with subsection (1), (2) or (4) if, after giving that notice, the person referred to in subsection (1), (2) or (3) gives the resident another notice to vacate under section 243, 244, 245, 246, 248, 249, 250, 251, 253, 278, 279, 280, 281, 282, 283 or 284 of the Residential Tenancies Act 1997.

83 VCAT orders—existing rooming house operator refused licence

(1) The Director may make an application to VCAT for VCAT to make an order under this section if the Authority refuses to grant a licence to an existing rooming house operator under section 16.

(2) VCAT must hear an application made under subsection (1) as soon as practicable after the period specified in section 42(3) during which the existing rooming house operator may apply to VCAT.

(3) If VCAT considers it appropriate, VCAT may make one or more of the following orders—

(a) an order requiring the existing rooming house operator to comply with a requirement specified by VCAT within, or for, a specified time;

(b) an order requiring the existing rooming house operator to enter into an undertaking to perform, or not to perform, certain tasks specified in the undertaking;

(c) any other order for the purpose of protecting the residents of a rooming house operated by the existing rooming house operator, including an order that requires the existing rooming house operator, within the period specified by VCAT—

(i) to notify each resident of a rooming house operated by the existing rooming house operator that the rooming house is to be closed; or

(ii) to notify each resident of a rooming house operated by the existing rooming house operator that the rooming house is to be operated by a different person from a specified date; or

(iii) to give each resident of a rooming house operated by the existing rooming house operator a notice to vacate under section 268A or 290A of the Residential Tenancies Act 1997 (as the case requires) by the date specified in the notice, being not more than 120 days after the end of the period within which the notice is to be given; or

(iv) to refund to a resident of a rooming house any payment of rent made in advance by that resident.

A notice to vacate under section 268A of the Residential Tenancies Act 1997 terminates any fixed term tenancy agreement under that Act between the rooming house owner and the resident of the rooming house: see section 219(2) of that Act.

Division 2—Consequential amendments

84 Australian Consumer Law and Fair Trading  

Act 2012

In Schedule 1 to the Australian Consumer Law and Fair Trading Act 2012, after the item relating to "Retirement Villages Act 1986" insert—

"Rooming House Operators Act 2016".

85 Business Licensing Authority Act 1998

In section 3 of the Business Licensing Authority Act 1998, in the definition of business licensing Act, after paragraph (da) insert—

"(db) the Rooming House Operators Act 2016; or".

86 Estate Agents Act 1980

(1) In section 75(1)(ea) of the Estate Agents
Act 1980, for "1986" substitute "1986, the Rooming House Operators Act 2016".

(2) In section 75(1)(f) of the Estate Agents Act 1980, for "2013 or the Owners Corporations
Act 2006" substitute "2013, the Owners Corporations Act 2006 or the Rooming House Operators Act 2016".

(3) After section 75(1)(hf) of the Estate Agents Act 1980 insert—

"(hg) money payable out of the Fund in accordance with the Rooming House Operators Act 2016;".

87 Residential Tenancies Act 1997—Termination after notice to vacate

At the end of section 219 of the Residential Tenancies Act 1997 insert—

"(2) If a notice to vacate under section 268A or 268B or a notice of intention to vacate under section 235(3) is given in respect of a fixed term tenancy agreement between a rooming house owner and a resident of the rooming house, unless it terminates earlier in accordance with this Part, the fixed term tenancy agreement terminates on whichever is the earlier of—

(a) the termination date specified in the notice to vacate under section 268A or 268B; or

(b) if a notice of intention to vacate has been given under section 235(3), the termination date specified in that notice of intention to vacate.

Example

Earlier termination may occur by a notice to vacate given under section 243 or 250.".

88 Residential Tenancies Act 1997—new section 228A

After section 228 of the Residential Tenancies Act 1997 insert—

"228A Tenancy agreement—cancellation of licence or failure to renew licence

A tenancy agreement does not terminate merely because—

(a) an application for a licence, or for a renewal of a licence, to operate a rooming house under the Rooming House Operators Act 2016 is refused; or

(b) a licence to operate a rooming house under the Rooming House Operators Act 2016 expires; or

(c) the Tribunal cancels a licence to operate a rooming house under the Rooming House Operators Act 2016.

See sections 16, 20 and 33(1)(a)(v) of the Rooming House Operators Act 2016.".

89 Residential Tenancies Act 1997—Notice of intention to vacate

(1) In section 235(2) of the Residential Tenancies Act 1997, after "The notice" insert "under subsection (1)".

(2) After section 235(2) of the Residential Tenancies Act 1997 insert—

"(3) A resident of a rooming house who has entered into a tenancy agreement with a rooming house owner which is a fixed term tenancy agreement may give the rooming house owner a notice of intention to vacate the room or rented premises if the resident has been given a notice to vacate under section 268A or 268B.

(4) The notice of intention to vacate under subsection (3) must specify a termination date that is not less than 28 days after the date on which that notice of intention to vacate is given.".

90 Residential Tenancies Act 1997—Notice to have no effect in certain circumstances

At the end of section 236 of the Residential Tenancies Act 1997 insert—

"(2) This section does not apply to a notice of intention to vacate given under section 235(3).".

91 Residential Tenancies Act 1997—new sections 268A and 268B

After section 268 of the Residential Tenancies Act 1997 insert—

"268A Notice to vacate given by Tribunal order under Rooming House Operators Act 2016

(1) A landlord who is a rooming house owner must give a resident under a tenancy agreement a notice to vacate the room occupied by the resident if the Tribunal has made an order referred to in section 33(1)(b), 34(3)(c)(ii) or 83(3)(c)(iii) of the Rooming House Operators Act 2016 in relation to the rooming house owner.

(2) The notice must specify a termination date that is the date specified by the Tribunal as the termination date.

268B Notice to vacate—refusal of licence under Rooming House Operators Act 2016

(1) A rooming house owner who has entered into a tenancy agreement with a rooming house resident in accordance with section 94 may give the resident a notice to vacate the room or rented premises occupied by the resident under that tenancy agreement if—

(a) the rooming house owner's application for renewal of a licence under the Rooming House Operators Act 2016 is refused by the Business Licensing Authority and section 29(1) or 29(2) of that Act apply; or

(b) the rooming house owner's application for a licence under the Rooming House Operators Act 2016 is refused by the Business Licensing Authority and section 82(2) of that Act applies.

(2) The notice must specify a termination date that is 120 days after the date on which the notice is given.".

92 Residential Tenancies Act 1997—new section 272A

After section 272 of the Residential Tenancies Act 1997 insert—

"272A Residency rights—cancellation of licence or failure to renew licence

A residency right does not end merely because—

(a) an application for a licence, or for a renewal of a licence, to operate a rooming house under the Rooming House Operators Act 2016 is refused; or

(b) a licence to operate a rooming house under the Rooming House Operators Act 2016 expires; or

(c) the Tribunal cancels a licence to operate a rooming house under the Rooming House Operators Act 2016.

See sections 16, 20 and 33(1)(a)(v) of the Rooming House Operators Act 2016.".

93 Residential Tenancies Act 1997—new sections 290A and 290B

After section 290 of the Residential Tenancies Act 1997 insert—

"290A Notice to vacate given by Tribunal order under Rooming House Operators Act 2016

(1) A rooming house owner must give a resident a notice to vacate the room occupied by the resident if the Tribunal has made an order referred to in section 33(1)(b), 34(3)(c)(ii) or 83(3)(c)(iii) of the Rooming House Operators Act 2016 in relation to the rooming house owner.

(2) The notice must specify a termination date that is the date specified by the Tribunal as the termination date.

290B Notice to vacate—refusal of licence under Rooming House Operators Act 2016

(1) A rooming house owner may give a resident a notice to vacate the room occupied by the resident if—

(a) the rooming house owner's application for renewal of a licence under the Rooming House Operators Act 2016 is refused by the Business Licensing Authority and section 29(1) or 29(2) of that Act apply; or

(b) the rooming house owner's application for a licence under the Rooming House Operators Act 2016 is refused by the Business Licensing Authority and section 82(2) of that Act applies.

(2) The notice must specify a termination date that is 120 days after the date on which the notice is given.".

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Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 10 December 2015

Legislative Council: 10 March 2016

The long title for the Bill for this Act was "A Bill for an Act to improve the operation of rooming houses by establishing a licensing scheme for rooming house operators and to make consequential amendments to the Australian Consumer Law and Fair Trading Act 2012, the Business Licensing Authority Act 1998, the Estate Agents Act 1980 and the Residential Tenancies Act 1997 and for other purposes."

The Rooming House Operators Act 2016 was assented to on 10 May 2016 and came into operation on 26 April 2017: Special Gazette (No. 57) 7 March 2017 page 1.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Rooming House Operators Act 2016 by Acts and subordinate instruments.

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Oaths and Affirmations Act 2018, No. 6/2018

| Assent Date: | 27.2.18 | | Commencement Date: | S. 68(Sch. 2 item 110) on 1.3.19: s. 2(2) |

Residential Tenancies Amendment Act 2018, No. 45/2018 (as amended by Nos 11/2020, 25/2020)

| Assent Date: | 18.9.18 | | Commencement Date: | S. 377 on 29.3.21: Special Gazette (No. 42) 27.1.21 p. 1 |

Justice Legislation Miscellaneous Amendment Act 2018, No. 48/2018

| Assent Date: | 25.9.18 | | Commencement Date: | Ss 66–72 on 28.10.18: Special Gazette (No. 480) 16.10.18 p. 1 |

Guardianship and Administration Act 2019, No. 13/2019

| Assent Date: | 4.6.19 | | Commencement Date: | S. 221(Sch. 1 item 44) on 1.3.20: s. 2(2) |

Local Government Act 2020, No. 9/2020

| Assent Date: | 24.3.20 | | Commencement Date: | S. 390(Sch. 1 item 89) on 6.4.20: Special Gazette (No. 150) 24.3.20 p. 1 |

Consumer and Other Acts Miscellaneous Amendments Act 2021, No. 1/2021

| Assent Date: | 9.2.21 | | Commencement Date: | S. 104 on 10.3.21: Special Gazette (No. 110) 10.3.21 p. 1 |

Sex Work Decriminalisation Act 2022, No. 7/2022

| Assent Date: | 1.3.22 | | Commencement Date: | Ss 76, 77 on 1.12.23: s. 2(3) |

Residential Tenancies, Housing and Social Services Regulation Amendment (Administration and Other Matters) Act 2022, No. 40/2022

| Assent Date: | 6.9.22 | | Commencement Date: | S. 57 on 7.9.22: s. 2(2) |

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3 Explanatory details

No entries at date of publication.