Rooming House Operators Regulations 2017

The regulation directly affects anyone who applies for or holds a licence to operate a rooming house in Victoria. That includes natural persons (individual operators) and bodies corporate (companies, cooperatives or incorporated associations). Within those categories, the regulation also reaches managers of the rooming house and, for bodies corporate, every officer of the entity. A manager is defined in the Act (not in the regulation) but the regulation uses the phrase current or proposed manager, which means even a manager who has not yet started work must be included in the application and the fee paid. For a body corporate, the term officer is not defined in the regulation but presumably takes its meaning from the Act or general corporation law; it would typically include directors, company secretaries and possibly senior executives. Each officer triggers an additional 14.04 fee units on the application and 7.97 fee units on renewal. This makes the compliance cost significantly higher for a body corporate with multiple officers. It may create an incentive for operators to structure themselves as natural persons or to keep the number of officers and managers to a minimum, potentially affecting corporate governance choices. Beyond licence applicants, the regulation affects anyone who wishes to search the Register: for example, potential residents checking an operator’s licence status, tenants’ advocates, journalists, competitors conducting market research, or local government compliance officers. The fee for a search is modest (3.78 fee units, roughly $54 in 2017-18 dollars) and the cost of a certified extract or copy is 4.48 fee units, so the barrier to public access is low. The regulation also affects any person charged with an infringement offence listed in Schedule 1. A natural person facing an infringement notice for most listed offences must pay 6 penalty units; a body corporate pays 12. Some offences (sections 27(1), 27(3) and 28(2) of the Act) carry a flat 12 penalty units for both natural persons and bodies corporate, so a natural person charged with those offences pays double the usual infringement penalty. This asymmetry matters for operators who need to know which conduct attracts the higher rate.

The regulation itself does not impose any duties or confer any rights; it merely quantifies the fees and penalties attached to duties and rights created by the Rooming House Operators Act 2016. The key duties signalled by the infringement offences listed in Schedule 1 are those under sections 8, 21, 22, 27, 28, 37, 39, 40 and 46 of the Act. While the full text of those sections is not reproduced in the regulation, the headings and context imply the following. Section 8 is likely the requirement not to operate a rooming house without a licence. Sections 21 and 22 probably concern display of the licence, notification of changes in managers or officers, and related administrative obligations. Sections 27 and 28 likely cover compliance with directions, notices or orders from the regulator. Section 37 may relate to a duty to give information or provide documents. Sections 39 and 40 might impose record-keeping or reporting duties. Section 46 could concern a duty to notify the regulator of certain events, such as a change in the operator’s address. These duties are all strict liability or relatively low mens rea offences, as the regulation designates them as infringement offences suitable for ticketing rather than full prosecution. The main right created by the regulation is the right of any person to search the Register and obtain a certified extract or copy upon payment of the prescribed fee. This is a transparency mechanism. The fee is set low enough to encourage public use, but not zero, which means the government recovers the marginal cost of providing the search service. The regulation also confers a procedural right on a person served with an infringement notice: the right to pay the fixed penalty and avoid a court hearing. Because the infringement penalties are relatively modest (6 or 12 penalty units) and the alternative is to contest the matter in court, the system creates a default incentive to pay rather than litigate. Bodies corporate face a stronger incentive because their penalty is twice as high for most offences, though for the three flat rate offences they share the same penalty as natural persons.

The regulation creates a system of infringement offences that allow the regulator to issue a fine without going to court. The infringement penalties are set out in Schedule 1. For item 1 (section 8: operating without a licence), the penalty is 6 penalty units for a natural person and 12 for a body corporate. For items 2 and 3 (sections 21 and 22: administrative failures), the same rates apply. Items 4, 6 and 9 (sections 27(1), 27(3) and 28(2)) are unique: the penalty is simply 12 penalty units, with no distinction between natural persons and bodies corporate. Items 5 and 7 (sections 27(2) and 27(4)) revert to the dual rate: 6 for a natural person, 12 for a body corporate. Items 8, 10, 11, 12, 13, 14 and 15 cover other compliance obligations under sections 28, 37, 39, 40 and 46, again using 6/12 for most but with item 9 (section 28(2)) being a flat 12. This pattern suggests that the drafter considered a small number of offences to be more serious and thus deserving a higher base penalty regardless of the offender’s legal form. In dollar terms, using the 2017-18 penalty unit value of $158.57, 6 penalty units equals approximately $951 and 12 penalty units equals approximately $1,903. These amounts are not trivial for a small operator but are significantly lower than the maximum penalties that could be imposed by a court for the same offences (the Act would provide for higher maximum fines on conviction). The use of infringement penalties means the regulator can enforce compliance quickly and cheaply, without the cost of a prosecution. It also means the operator must decide whether to pay or to challenge the notice in court, potentially risking a higher penalty if convicted. The infringement penalty system is likely governed by the Infringements Act 2006 (Vic), which allows for enforcement actions such as penalty reminder notices, enforcement orders, and ultimately suspension of driver licences or property seizure for unpaid fines. The regulation does not address these enforcement steps; it only sets the initial penalty amount.

This regulation is made under section 80 of the Rooming House Operators Act 2016, which is the principal Act creating the licensing scheme and the offences listed in Schedule 1. The regulation does not amend or override the Act; it simply prescribes the fees and infringement penalties that the Act requires to be prescribed. The Monetary Units Act 2004 is the framework that gives meaning to the fees and penalties expressed in fee units and penalty units. Section 7 of that Act governs the calculation and rounding of amounts. The value of a fee unit and a penalty unit is set by the Treasurer annually under section 5 of the Monetary Units Act. This means the regulation’s dollar amounts change each financial year without further amendment. The Sentencing Act 1991, through section 110, defines the penalty unit and its interaction with court imposed fines. The Subordinate Legislation Act 1994 requires certain statutory rules to sunset after 10 years, which explains why this regulation expires on 7 March 2027 unless remade. The regulation also interacts with the Infringements Act 2006 (Vic), which governs the process for issuing infringement notices, enforcement of unpaid penalties, and the rights of persons to elect to have the matter heard in court. While the regulation designates an offence as an infringement offence and sets the penalty, the Infringements Act provides the procedural machinery. Finally, the regulation interacts with the general law of contracts and leases because the cost of licensing fees and the risk of infringement penalties are part of the cost of operating a rooming house, which may be passed on to residents through higher rents. There is no direct interaction with consumer law or tenancy law visible in the regulation, but the underlying Act would create interfaces with the Residential Tenancies Act 1997 to the extent that rooming house residents have additional protections.

The original Rooming House Operators Regulations 2017 were made on 7 March 2017 as S.R. No. 6/2017 and commenced on 26 April 2017. They were amended once by the Rooming House Operators Amendment Regulations 2017, S.R. No. 37/2017, which was made on 30 May 2017 and commenced on 1 July 2017. That amendment substituted a completely new Schedule 1 for the original schedule. The original content of Schedule 1 is not reproduced in the current version, so it is impossible to determine what the earlier infringement offences or penalties were. The amendment came into effect only two months after the original commencement, which suggests that the original schedule may have contained errors or that policy changes were made before the full scheme became operational. Version No. 002 of the regulation, which is the version published as incorporating amendments as at 1 July 2017, is the current version. The table of amendments shows no other amendments and confirms that there are no amendments not in operation at the date of publication. The regulation itself has no further amendment history. The endnotes note that the Subordinate Legislation Act 1994 requires sunset after 10 years from the date of making (7 March 2027). If the regulation is not remade before that date, the fees and infringement penalties will lapse, and the licensing scheme would cease to have prescribed fees and infringement penalties unless another instrument is made. This creates a risk for operators who rely on the regulatory framework for certainty.

The source text contains no reference to any litigation involving this regulation. That is unsurprising. Regulations of this type, which merely prescribe fees and fix infringement penalties at low amounts, are rarely litigated directly. Challenges to fees would typically be brought as part of a broader challenge to a licensing decision under the Act, or as a judicial review of the exercise of a power delegated by the Act. An operator might argue that a fee was miscalculated because the fee unit value was incorrectly applied or that the fee was not validly prescribed because the regulation was beyond power. However, the regulation is straightforward and the Minister has a broad power to prescribe under section 80 of the Act, so such challenges would be difficult. The infringement penalties could be challenged on constitutional grounds (e.g., that they are so high as to be punitive rather than regulatory) or on natural justice grounds if the infringement notice process was defective, but again no such cases appear in the source. It is also possible that the regulation was considered in litigation concerning the underlying Act, but the source does not mention any. Practitioners should note that the absence of litigation does not mean the regulation is immune from challenge; it merely means no reported cases have arisen.

Several features of this regulation may catch out operators or their advisers. First, fees are expressed in fee units, not dollars, and the dollar value changes each year. An operator who calculates the fee once and does not check the current fee unit value risks underpaying. The regulation requires payment of the prescribed fee at the time of application, and the fee unit value in force at that time governs. For a licence that lasts three, four or five years, the operator pays the licence fee upfront based on the fee unit value at the time of application. If the fee unit value increases in later years, the operator does not pay extra, but the renewal application fee will be calculated at the then current rate. Second, the additional per manager and per officer fees apply at both initial application and renewal. A body corporate with many officers may face a significantly higher cost than a natural person with the same number of managers. There is no discount for a body corporate that nominates the same persons as both managers and officers; each person counts in both categories if they hold both roles. Third, the higher flat penalty of 12 penalty units for sections 27(1), 27(3) and 28(2) applies equally to natural persons and bodies corporate. A natural person charged with one of those offences pays 12 penalty units (around $1,903 in 2017-18 dollars) rather than the usual 6. This is double the normal rate. An operator might not realise that certain types of noncompliance attract a higher fixed penalty. Fourth, the regulation has a sunset date of 7 March 2027. If the regulation is not remade, all fees and infringement penalties will cease to exist, potentially creating a gap in the licensing scheme. Operators and regulators should monitor the status of the regulation as the sunset approaches. Fifth, the rounding of fees to the nearest 10 cents means that operators should not simply multiply fee units by the current dollar value and pay the raw figure; they must apply the rounding rule. Sixth, the definition of manager and officer is not in the regulation; it is in the Act. Operators need to consult the Act to determine who counts as a manager or officer for fee purposes. Finally, the Schedule 1 offence list includes references to sections that are not reproduced, so operators need the full Act to understand which conduct triggers an infringement penalty.

Compliance with this regulation is largely a matter of paying the correct fees and avoiding the conduct that triggers an infringement penalty. The steps are straightforward. When applying for a new licence, the operator must calculate the application fee using the fee unit value for the current financial year. For a natural person, that is 15.91 fee units plus 14.04 fee units for each current or proposed manager. For a body corporate, the base is 16.58 fee units plus 14.04 per manager plus 14.04 per officer. Multiply the total fee units by the current dollar value of a fee unit (published in the Government Gazette before 1 June each year) and round the result to the nearest 10 cents. The same calculation applies at renewal, but the per person component is 7.97 fee units rather than 14.04. The licence fee itself is a separate charge: 35.95 fee units for a three year licence, 47.93 for four years, or 59.92 for five years. The operator must choose a licence term and pay that amount upfront. The regulation does not specify whether the licence fee is refundable if the licence is surrendered or cancelled, so operators should assume it is not. For Register searches and certified extracts, a person must pay 3.78 fee units for a search and non certified copy, or 4.48 fee units for a certified extract or certified copy. These fees can be paid when requesting the search. To avoid infringement penalties, the operator must comply with the underlying offences listed in Schedule 1. The operator should have a clear understanding of what sections 8, 21, 22, 27, 28, 37, 39, 40 and 46 of the Act require. Generally, that means holding a valid licence; displaying it correctly; notifying the regulator of changes in managers, officers or contact details; complying with any compliance notices or orders; keeping required records; reporting certain events; and providing information when required. Because the infringement penalties are low, an operator may be tempted to treat them as a cost of doing business, but that would be a mistake: a pattern of infringement notices could lead to licence suspension or non renewal under the Act, and the costs of compliance are lower than the risk of losing the licence. The operator should also keep records of all fee payments and monitor the sunset date of the regulation to ensure continued compliance if the regulation is remade or replaced.