: Residential Tenancy Databases: more about landlords, less about tenants?

Residential Tenancy Databases: more about landlords, less about tenants?

Anne Macduff

Residential Tenancy Databases (‘RTDs’) are used by real estate agents and landlords to share information about ‘problem’ tenants. One concern about RTDs is that the information they contain is sometimes false, ambiguous, out of date or inaccurate. Such information can prevent a tenant securing future housing. There have also been concerns that RTDs are not compliant with the National Privacy Principles.

On 23 August 2011, the ACT Legislative Assembly passed the Residential Tenancies (Databases) Amendment Act 2011. The Attorney-General Simon Corbell summarised the purpose of the amendment in an official media release. He stated that ‘while the legislation provides greater rights to tenants, it also allows lessors to ensure their property is protected.’

The Amendment Act 2011 will delete Part 6A of the Residential Tenancies Act 1997 (ACT) (‘RTA’) . Part 6A currently provides a mechanism for notifying tenants that information will be included in a tenancy database, as well as a mechanism for challenging its inclusion. Part 6A also sets out restrictions on what sort of information can be included in RTDs. However, these restrictions are not clearly defined. There has been some doubt in the ACT about the scope of these protections for tenants.

As of February 2012, Part 6A will be replaced by new Part 7. New Part 7 strengthens the obligations of landlords and real estate agents to notify tenants about their use of RTDs. The amendment also clarifies what information can be included in tenancy databases and when. Tenancy information will be able to be collected, stored and used about a person if:

a) that person is named on the agreement and the agreement has ended and,
b) the person has breached the agreement and,
c) either the amount owed is larger than the bond or the ACT Civil and Administrative Tribunal has made a termination order.

In most cases, information can only be stored for 3 years, after which time the information is considered ‘out of date’.

These amendments largely implement the national uniform model provisions developed by the Ministerial Council of Consumer Affairs. The question is whether these new laws strike a fair balance between tenants’ rights to privacy and housing and landlord protection.

The model RTD provisions can be downloaded from http://www.consumerlaw.gov.au/content/mcca/downloads/Residential_Tenancy_Databases_model_provision.pdf.

ANNE MACDUFF teaches law at the ANU.

(2011) 36(4) AltLJ 282
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