Residential Tenancies Amendment Bill

Members, when the committee suspended at 1 p.m., we were debating Part 3 of the Residential Tenancies Amendment Bill. Part 3 is the debate on clauses 30 to 39, “Tenancy Tribunal and administrative matters”, and Schedules 1 and 2. The question is, again, that Part 3 stand part.

Point of order. Madam Chair, if you’ll permit me, before I make this contribution, can I just clarify something? Are we able to debate Schedules 1 and 2 now?

CHAIRPERSON (Barbara Kuriger): Yes.

Hon KIERAN McANULTY: Excellent. Before I get on to the schedules—because I don’t believe that it’s actually been touched on yet—

CHAIRPERSON (Barbara Kuriger): Yes, the schedules have been touched on prior to—your issue may not have been, but we have—

Hon KIERAN McANULTY: Sorry, that’s what I meant—that’s what I meant. The one thing that I did want clarity on—and I’m pleased, frankly, that the Minister of Housing is back in the chair, because I was hoping that the previous Minister in the chair would have treated this issue seriously. I think there could be serious issues arising from this if it’s not addressed properly.

What we’re talking about is clause 31(3): the tribunal does not have jurisdiction to determine a dispute in regards to issues of family violence. Now, for the Minister’s benefit, I made the point that we do not dispute this; in fact, we support it. We think there are grounds for it to be potentially strengthened. My concern, which I haven’t had a direct response about, is that if the tribunal is not going to rule on these disputes, what happens? The tenant in this situation—a very serious situation—is required to provide qualifying evidence. If the landlord disputes that, and therefore the tenant isn’t able to take advantage of the special provisions available to them in this bill, what do they do?

What we did hear from the Minister was that the Government doesn’t believe that it’s the tribunal’s job to assess this matter, but in the absence of the tribunal, what avenues does the tenant have available to them? Given the situation, Minister, I think it’s important that we simply don’t leave them in the lurch. Now, it’s fine if the Government’s position is that another body will deal with these disputes. In the absence of that explanation, the only conclusion we’ve got it that there isn’t a body to deal with these sorts of disputes. Again, given the seriousness of this, and the circumstances under which someone or someone’s dependant finds themselves when they’re a victim of family violence, some reassurance is required here.

Now, as I said in the last contribution, when I last asked this question, this could be a simple explanation. If it is, I think it’s a shame that the previous Minister in the chair didn’t just stand up and explain it. They didn’t, and so I’m hoping now, particularly with the change in Minister, that we’ll get a serious answer.

Thank you, Madam Chair. I am interested in clause 33, which inserts new section 91AB, and that gives the tribunal the power to make decisions on the papers. In terms of speed and efficiency, I’m all for it, and it’s obviously a discretion to decide a matter on the papers, but I’m interested, really, for the Minister of Housing to put on the record the basis upon which that discretion should be exercised.

I just want to explain why I think that’s important. The fact of the matter is that landlords, by their endeavours, have shown that they’ve got a bit of nous—they’re a bit savvy—and, say, putting their case for damage or whatever on paper and in writing is not going to be a challenge in most cases. Tenants, on the other hand, are more likely to be less adept at expressing themselves in writing. I see recently men fell down the literacy scales in New Zealand, so maybe blokes are in an even worse position. But my point is this: will the tribunal officer, the referee, have regard to what they see, and, in particular, will they call an oral hearing when they see that there may be a problem of literacy or expression or capability? I think it would be really good for the Minister to just take a call and essentially outline what the parliamentary intent is around how that discretion should be exercised.

In particular, where there appears to be an imbalance of abilities, there should be a presumption in favour of an oral hearing. That may be something to note, as well, that this certainly gives that ability to decide on the papers, but is it a presumption that it’s decided on the papers or is it a presumption that you do an in-person hearing? I do think that, in terms of the pretty fundamental natural-justice principle of a fair hearing, the presumption should be an oral hearing unless it can be clearly shown that everything you need to know is there on the papers and no one’s under a disadvantage as a result of it.

I’d really appreciate it if the Minister could set that out, because it’s actually quite an important point, whether you default to an oral hearing or you default to an on-the-papers hearing. I won’t take all my time, because I think I’ve expressed the question pretty clearly.

Thank you, and thank you to the members for explaining what was apparently being discussed before the break when I wasn’t here. Let me deal with Duncan Webb’s question first. The change we’re making is to allow Tenancy Tribunal issues to be dealt with on the papers, but there is the ability to do oral hearings—I’m advised that that is essentially standard practice for a range of tribunals which have that discretion, and, clearly, in complicated cases you would want the tribunal to do hearings. I envisage the papers-only hearings to be relatively simple matters. I’m also advised that any termination has to have a hearing rather than be dealt with on the papers, and I think that is wise. In relation to the Hon Kieran McAnulty’s issues—

Hon Kieran McAnulty: Excuse me, Minister—could you bring the mike a bit closer please?

Hon CHRIS BISHOP: Oh, my apologies, my apologies.

Hon Kieran McAnulty: Thank you.

Hon CHRIS BISHOP: You good? OK. In relation to the Hon Kieran McAnulty’s questions—so, look, what’s happening here is the previous Government amended the Residential Tenancies Act in a way that I think all of Parliament supports around family violence. I’m advised that the change being made through this amendment bill deals with the issue of dependants of victims of family violence, which was not picked up during the 2020 changes—could be 2019, might be wrong. I think it might have been 2020—there were about three different bills at one point going through. That wasn’t picked up, so it’s just a minor clarificatory change to deal with that, but the rest of it is in substance the same.

In relation to points around evidence, that’s dealt with in Schedule 2—types of qualifying evidence: protection orders, police safety orders, and charging documents. There’s no intention for the tribunal to get involved. The tribunal is not going to replicate the role of the police or the courts or safety orders or anything like that. It’s not their role, unsurprisingly, but, clearly, there’s an interaction with the tribunal in respect of that type of evidence and the written notice. Actually, as I think about it, the issue of the dependant—I’m fairly sure I had a constituency case around that. There aren’t a vast number of these cases, but, sadly, domestic violence is a fact of life in our communities—or family violence—and so I think it’s a sensible change which I hope will meet with the committee’s approval.

Thank you, Madam Chair, and I thank the Minister the Hon Chris Bishop for his answers there. I want to draw the Minister’s attention, if I may, to clause 34 and clause 35, where we are—and the Minister talked very briefly there about life, constituent matters.

Those particular clauses talk about the provision of email and about when it’s deemed that an email has been received. I wonder if the Minister would consider, given the challenges that some have electronically, given the challenges that some of our constituents have with respect to email addresses—and I, for one, can give an example whereby I’d been sent an email which was actually of importance and, through no fault of my own, was put into a spam inbox. Something that wasn’t seen by me for a wee bit there caused quite bit of a—we were able to sort it out, but it wasn’t something that was done within the time frame that’s being offered here in these clauses.

Just the final point on this particular matter is, given the evolution of communications through our communities, to our constituents, to people in general, whether or not an email is really the only standard that we’re setting here. Communications with our people are complex, they’re varied. Emails change, emails come, emails go—I know a number of constituents in housing matters that I dealt with as a local MP would not give their work email address simply because of the nature of their work and the high volume of traffic that they get through their emails. They would give a different one, which was probably something a little bit more personal—perhaps a Gmail account—and, quite often, the communication was missed.

That’s the point I’m trying to make here: whether or not the Minister, in his considerations with this particular bill, look towards those real-life matters. I know it might sound trivial to some, but for many of our people who find themselves renting, who find themselves with these kinds of agreements, these are matters that can cause huge stress and can simply be fixed if the Minister is of a mind to consider a greater scope of communication.

Also, replacement section 136(8), inserted by clause 35, references the time of 5 p.m. on a day, and I wonder if we can probably, perhaps, be a bit more specific here and talk about whether or not it’s Monday to Friday. For some, that’s what they consider to be a working week; for others, actually, they work shifts, they work evenings, and this is the reality of our people who find themselves renting.

I’ll leave these for the consideration of the Minister in the hope that we can look towards making sure that the scope of this bill—and the fact is it’s going to continue through the House—actually reflects the lives of our people and not simply the bubble of Parliament.

CHAIRPERSON (Barbara Kuriger): I’m going to take a call from the Hon Carmel Sepuloni—the Minister’s just taking some advice here.

OK, that’s fine. Hopefully, the Minister of Housing can have one ear listening to what I’m about to raise and questions that will come of that.

Just referring to clause 31, in Part 3—I know some questions have been raised about this clause already, but mine is different. Replacement section 77(7B), inserted by clause 31, says, “The Tribunal does not have jurisdiction to determine a dispute so far as it raises a question as to whether, in respect of a tenant who gives notice accompanied by qualifying evidence under section 56B,—(a) the tenant has been a victim of family violence while a tenant of the premises; or (b) the tenant’s dependant has been a victim of family violence while residing at the premises with the tenant.” This is part of what we do support in this bill, this particular provision, and it’s really difficult given that there’s another part that we cannot support.

However, I wanted to ask the Minister whether there was consideration by him and by his officials for extending it beyond family violence. Of course we take family violence seriously, and we are very relieved that this provision is in the bill, actually, but people live in different circumstances, and there are a lot of people who aren’t necessarily family that are living in the same houses and could be vulnerable due to violence that is committed against them as well. I wonder whether the officials and the Minister gave consideration for just having a more blanket provision that allowed for tenants to exit their tenancy if there was violence occurring or if they were victims of violence or if their children were victims of violence in homes where the perpetrator wasn’t necessarily a family member. You can see that this would be an area that can occur. However, they’re excluded just because of the fact that they’re not blood relatives. I wanted the Minister just to respond to that and let us know whether or not that was considered.

I’ll deal with that one first, then come back to the point around clause 34. It wasn’t a focus of policy design as part of this amendment bill. The key changes to the bill have already been canvassed around pet bonds, and there’s also a range of other amendments, some of which have been canvassed—more tidying-up provisions to our tenancy law. The whole Act’s pretty out of date to be honest, as members, I think, are nodding and agree. It was passed in 1986, so, at some point, Parliament will have to do a rewrite, but there are some other things to do before then. We didn’t consider that. I’m happy to go away and have a look at it. As the member knows, these changes were made by the previous Government—I think, with broad support—as I indicated just a few moments ago, adding the dependants in there. The regulations have now come into effect relatively recently, from memory. I think we want to see how they bed in, but I’m not close-minded to further changes.

In relation to this email address point, I’m advised that section 91A of the Act, which clause 34 amends, prescribes how documents can be served on tenants following an application to the Tenancy Tribunal after the tenancy has terminated. The bill enables the use of an email address, where the tenancy was ended more than two months ago, if one has been appropriately provided by the tenant. The reason is, obviously, that email is likely to be a much more reliable method for service than a physical address for contacting a tenant who no longer lives at that rental property. The requirement that the email address was either provided as an address for service or used by the tenant, depending on how long ago the tenancy ended, ensures the email address used is likely to remain appropriate and current. To give you an example, if the landlord files the application more than two years after the tenancy ended, the email address must have been used to communicate with the landlord, or be otherwise supplied in writing, within the previous two years.

The bill doesn’t make any change to the existing time limit on applying to the tribunal for a tenancy that has ended. That is set in the Limitation Act at six years from the date of the act or omission. I think we’ve struck the right balance here in the bill. Members might disagree, but all of these things are a bit of a balancing act, and I think we’ve tried to strike the right balance.

I move, That debate on this question now close.

I’m going to give the Hon Dr Duncan Webb a chance to ask something new. They’re good questions that we’re having this afternoon, but there was a little bit of repetition when we were in the committee before lunch.

No, I’m sure my colleague will sit me down very quickly and jump up if I do that. It’s very shiny—it’s shiny in here.

CHAIRPERSON (Barbara Kuriger): Let’s see how the question goes, because the Minister has been very full in his answers.

Hon Dr DUNCAN WEBB: Thank you for that, and I really appreciate it. It’s actually quite an important point, because I can see the quite appropriate shift towards electronic means of communication. It’s a point of detail, but it’s something that cuts across a whole lot of Acts. It’s about the words used in respect of email. I’m looking at clause 35(2), which inserts replacement section 136(8), “If any document is transmitted to an electronic address”, right? It’s a very natural use of language, but the word “transmitted” is actually a really tricky one.

Hon Chris Bishop: Ha!

Hon Dr DUNCAN WEBB: Well, no, it is, because if you think of sending an email, you can push send and it cannot leave your own computer, or you could push send and it leaves your own computer but doesn’t leave Parliament’s, or you can push send and it gets into someone else’s wider computer system but not to the person to whom it is addressed, or you can push send and it gets all the way to the person it’s sent to.

Now, this is dealt with a little bit in the Electronic Transactions Act, which is now quite old—2002. When you say “transmitted”, I think, because this is service of notices, you need to be clear whether you mean it leaves the electronic system of the sender and its organisation, because emails actually get lost in this ether in the middle, or it actually enters. Does “transmitted” mean it enters the system of the person to whom it is addressed? The real point being that things can go wrong without it being either the sender’s or the recipient’s fault. The address is right, the systems are roughly working, but something’s gone wrong. I see the Minister’s going to answer that.

Well, I mean, the member makes a good point, and I think, respectfully, it’s probably beyond the scope of this bill because the word “transmitted” probably appears in lots of statutes and over time Parliament has updated its language around things. He makes a good point about the Electronic Transactions Act 2002—goodness me, I remember when that passed. Again, it’s one of those sorts of basic architectural pieces of legislation we’ll have to turn our mind to in due course.

Ultimately, we’ve taken the—I mean, this is Parliamentary Counsel Office drafting. Is it possible that there is going to be a dispute at the tribunal about what “transmitted” means? Yes, I suppose, in theory. I frequently send emails, or I think I’ve sent emails—from my house—on the Parliament server and they never arrive, and I’m sure other members—

Tom Rutherford: That old chestnut.

Hon CHRIS BISHOP: Yeah, that old chestnut. Has it been transmitted if it’s not sent? I mean, yep, I can see the arguments before the tribunal now. Am I saying that’s not going to happen? No, it probably will; it might well happen.

Hon Dr Duncan Webb: Give them a hint—what do you want to happen? When should it be?

Hon CHRIS BISHOP: Well, I’m happy to go away and have a look at that and see whether or not we need to make a change, but we are really now into the kind of niche definition, and we’ve based that on counsel advice. I’m comfortable with where it’s at the moment. I’m not saying the member doesn’t have a point, but I think it’s probably a bit beyond the scope of this particular bill.

One last very burning and relevant question from the Hon Kieran McAnulty.

Thank you, and I do appreciate this because this is the one I signalled earlier that I hadn’t had a chance to get to, and I think it’s worth looking into, so thank you very much, Madam Chair.

I’m referring to new section 48, “Liability for pet damage”, inserted by Schedule 1. It says it “applies to any destruction or damage that the landlord becomes aware of on or after the commencement date,”—we’ve got no issue with “on or after the commencement date”—“unless the tenant proves that the damage or destruction occurred before the commencement date.” I’ve got an issue with this. The landlord only needs to demonstrate that they became aware of it. That’s a very easy thing to say: “I became aware of it on this day.” Then it’s on the tenant to prove otherwise. There could be existing damage, somewhere on the property, that isn’t obvious. On the very day the tenant moves in, the landlord could say, “Oh, I’ve just become aware of this.”, and it’s on the tenant to prove otherwise. I’m not sure that is fair. I think there’s too much of a requirement on the tenant to prove something that the landlord is saying they’re just becoming aware of.

I can absolutely see this being abused, Minister. Absolutely. Now, I’m sure it isn’t his fault. I’m sure it’s just the way that it’s been put together—I think, potentially, with the words that have been used. I don’t even have a solution, but I am concerned about the way that it is currently written. I wonder if the officials behind the Minister may have a potential quick solution to that. I think it’s worthy of a response.

Just a moment; the Minister’s just taking some advice.

Thank you, Madam Chair. Happy to—I mean, the general point is the point I made many hours ago, which is that this is new. It’s actually quite a change to our tenancy law in relation to pets. There are going to be issues as we work our way through, and I’m not pretending that we’ve got it 100 percent right. We’ve done, I think, a pretty reasonable job of quite a change, but, ultimately, some of it will depend on how it operates in practice and how the tribunal works. That’s just the way our tenancy rules work.

Again, as I said earlier in the debate, a lot of it is down to people actually being reasonable—landlords being reasonable, and there are lots of unreasonable landlords. Frankly, also tenants need to be reasonable about things, and there are plenty of examples of tenants who trash rooms, and all the rest of it. As long as we’re all reasonable, we’ll all get on. Now, clearly there is unreasonableness, and that’s why we have a tribunal, and there are finely balanced issues that need to be worked through.

I’m advised that there has to be a date that applies to the tenancies that are in train, and so I’m comfortable with where we’ve got to in relation to section 48. It applies to “any destruction or damage that the landlord becomes aware of on or after the commencement date, unless the tenant proves that the damage or destruction occurred before the commencement date.” I think what the member is saying is that you reverse the onus so that it’s about the landlord proving that, rather than the tenant proving that. That’s something we could potentially pick up as part of potential amendments in the future, if indeed it’s proven that it is a problem, but we don’t have any evidence of that, because it’s new law.

I understand the point he’s making. I’m not opposed to an amendment down the line, but let’s see how the situation beds in and see how the tribunal operates, and see if we need to make any changes.

I move, That debate on this question now close.

The question is that Tamatha Paul’s amendment to clause 31 set out on Amendment Paper 234 be agreed to.

The question is that Tamatha Paul’s amendment to clause 33 set out on Amendment Paper 235 be agreed to.