Boarding Houses Act 2012 No 74
Part 2 Registration of boarding houses
Division 1 Introductory
(1) In this Part:initial compliance investigation—see section 16 (3).Register means the Register of Boarding Houses kept by the Commissioner under this Part.(2) Any notification given to the Commissioner under this Part is to be in the form approved by the Commissioner from time to time.(3) Any matter approved (or any revocation or amendment of an approved matter) by the Commissioner for the purposes of a provision of this Part that authorises the Commissioner to approve the matter does not have effect until it is published on the website of the Department of Finance, Services and Innovation.
8 Meaning of “registered”
A registrable boarding house is registered for the purposes of this Part if the particulars of the boarding house are currently included in the Register.
Division 2 Provision of information about registrable boarding houses
9 Notification of particulars about registrable boarding house
(1) A proprietor of boarding premises that are used as a registrable boarding house must notify the Commissioner, in accordance with this section, of the following particulars so as to enable the Commissioner to include information about the boarding house in the Register:(a) the name, and the residential or business address, of each proprietor of the boarding house,(b) the name (if any) and the address of the registrable boarding house,(c) whether the boarding house is a general or regulated assisted boarding house,(d) whether development consent or approval is required under the Environmental Planning and Assessment Act 1979 to use the boarding house as boarding premises and, if so, whether such consent or approval has been granted,(e) the number of residents of the registrable boarding house,(f) the number of residents who are under 18 years of age,(g) the name of the manager (if any) of the registrable boarding house,(h) the total number of bedrooms provided as sleeping accommodation for the residents,(i) such other particulars as may be approved by the Commissioner or prescribed by the regulations.(2) A proprietor of boarding premises to which subsection (1) applies must notify the Commissioner of the particulars referred to in that subsection:(a) if the boarding premises are a registrable boarding house on the commencement of this section (but subject to paragraph (c))—within 6 months after that commencement, or(b) if the boarding premises become a registrable boarding house after the commencement of this section—within 28 days after the premises become a registrable boarding house, or(c) if the proprietor has become a new proprietor of the premises after the commencement of this section—within 28 days after the person becomes a proprietor of the premises.(3) A notification under this section must be accompanied by a registration fee of $100 or such other registration fee as may be prescribed by the regulations.(4) The Commissioner may waive, reduce or postpone payment of a registration fee, or refund such a fee, in accordance with the regulations.(5) A proprietor of a registrable boarding house who contravenes this section is guilty of an offence.Maximum penalty:(a) in the case of a corporation—100 penalty units, and(b) in any other case—50 penalty units.(6) A proprietor of a registrable boarding house is not excused from a requirement under this section to notify particulars concerning the boarding house on the ground that the notification of those particulars may incriminate the proprietor or make the proprietor liable to a penalty.
10 Annual returns for registrable boarding house
(1) A proprietor of a registrable boarding house must, within 28 days after the end of the annual return period for the boarding house, notify the Commissioner of the changes (if any) as at the end date for the period in the particulars referred to in section 9 (1).Maximum penalty:(a) in the case of a corporation—20 penalty units, and(b) in any other case—10 penalty units.(2) The annual return period for a registrable boarding house is the period of 12 months commencing on the date that particulars were last provided to the Commissioner for the purposes of a notification under section 9 or the last anniversary of that date (whichever is the later).(3) Nothing in this section prevents any condition from being imposed on a boarding house authorisation (within the meaning of Part 4) that requires the furnishing of particulars to the Commissioner for the purposes of this Part on a more frequent basis than annually.
11 Notice of cessation of use
If any premises cease to be a registrable boarding house, the person who was the proprietor of the boarding house immediately before that cessation must notify the Commissioner of that cessation and the date on which it occurred within 28 days of the cessation.Maximum penalty:(a) in the case of a corporation—20 penalty units, and(b) in any other case—10 penalty units.
Division 3 Register
12 Commissioner to keep Register of Boarding Houses
(1) The Commissioner is to keep a Register of Boarding Houses.(2) The Register may be kept in such form as the Commissioner considers appropriate.(3) The Commissioner is to ensure that information on the Register is kept up to date.(4) The Commissioner may correct any error in or omission from the Register.
13 Information to be recorded on Register
(1) The Commissioner is to record in the Register in relation to each registrable boarding house the particulars notified to the Commissioner under this Part and Part 4 about the boarding house.(2) The Commissioner may also record in the Register in relation to a registrable boarding house:(a) particulars of any enforcement action taken in respect of the boarding house, its proprietor or any of its staff (including any action taken under Part 4 in the case of a regulated assisted boarding house), and(b) any other particulars or information that the Commissioner considers appropriate or that may be prescribed by the regulations.
14 Publication of certain information on Register for public access
(1) The Commissioner is to arrange for the following information contained in the Register about registrable boarding houses to be published on the Internet for public access:(a) the name (if any) and the address of each registrable boarding house that is registered,(b) the name, and the residential or business address, of each proprietor of the boarding house,(c) whether the boarding house is a general or regulated assisted boarding house,(d) such other information as may prescribed by the regulations.(2) No other information contained in the Register may be made available to the public.(3) The information referred to in subsection (1) may also be provided to members of the public in any other manner approved by the Commissioner.Note.See also section 94 relating to the exchange of information with other government agencies.
15 Evidential provisions concerning Register
(1) The Register is evidence of any particulars or information recorded in it.(2) A certificate signed or purporting to be signed by the Commissioner, or an employee of the Department of Finance, Services and Innovation authorised in writing by the Commissioner, and stating:(a) that the premises named in the certificate were or were not registered at a specified time, or(b) that the premises named in the certificate were or were not registered as a general or regulated assisted boarding house at a specified time, oris admissible in any legal proceedings and is evidence of the matters stated in the certificate.(c) any other particulars or information recorded in the Register at a specified time,
Division 4 Initial compliance investigations for registered boarding houses
16 Requirement to inspect certain registered boarding houses within 12 months of registration
(1) For the purposes of this Division, a registered boarding house is a registrable boarding house that is registered.(2) A council is to arrange for an initial compliance investigation to be conducted under this Division for each registered boarding house located in its area:(a) if the house has not previously been registered—within the period of 12 months after the house is first registered, or(b) if the house has been re-registered following a period of not having been registered—within the period of 12 months after the house is re-registered, or(c) if a proprietor of the house has changed since it was registered or re-registered—within the period of 12 months after the new proprietor’s name is recorded in the Register.(3) An initial compliance investigation is an investigation into whether a registered boarding house complies with requirements imposed by or under the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979 with respect to the use of the boarding house, including (but not limited to):(a) requirements in relation to building and fire safety, and(b) relevant standards or requirements for places of shared accommodation for the purposes of Order No 5 (d) in the Table to section 124 of the Local Government Act 1993.(4) A council is not required to arrange for an initial compliance investigation of a registered boarding house if the premises of the boarding house were inspected under the Local Government Act 1993 or this Division at any time in the period of 12 months immediately before the date on which the boarding house was registered or re-registered or a new proprietor’s name was recorded in the Register (as the case requires).
17 Power of entry
(1) For the purpose of conducting an initial compliance investigation, a council employee (or other person) authorised by a council may enter the premises of a registered boarding house, including any part of the premises used for residential purposes.(2) Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.
18 Inspections and investigations
For the purpose of conducting an initial compliance investigation, a person authorised to enter premises under this Division may:(a) inspect the premises and any food, vehicle, article, matter or thing on the premises, and(b) for the purpose of an inspection:(i) open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and(ii) require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979 (or the regulations or other instruments under those Acts), and(c) take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and(d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and(e) take samples or photographs in connection with any inspection.
19 Notice of entry
(1) Before a person authorised to enter premises under this Division does so, the council must give the proprietor or manager of the premises written notice of the intention to enter the premises.(2) The notice must specify the day on which the person intends to enter the premises and must be given before that day.(3) This section does not require notice to be given:(a) if entry to the premises is made with the consent of the proprietor or manager of the premises, or(b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or(c) if entry to the premises is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.
20 Use of force
(1) Reasonable force may be used for the purpose of gaining entry to any premises under a power conferred by this Division, but only if authorised by the council in accordance with this section.(2) The authority of the council:(a) must be in writing, and(b) must be given in respect of the particular entry concerned, and(c) must specify the circumstances which are required to exist before force may be used.
21 Notification of use of force or urgent entry
(1) A person authorised to enter premises under this Division who:(a) uses force for the purpose of gaining entry to the premises, ormust promptly advise the council.(b) enters the premises in an emergency without giving written notice to the proprietor or manager,(2) The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.
22 Care to be taken
(1) In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.(2) As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.(3) If, in the exercise of a function under this Division, any pit, trench, hole or bore is made, the council must, if the proprietor or manager of the premises so requires:(a) fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and(b) without unnecessary delay, fill it up or level it or sufficiently slope it down.
23 Recovery of fee for initial compliance investigation
A council may charge and recover an approved fee under section 608 (Council fees for services) of the Local Government Act 1993 for the conduct of an initial compliance investigation.
(1) A council must pay compensation for any damage caused by any person authorised by the council under this Division to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this or any other Act.(2) Section 730 of the Local Government Act 1993 applies to the resolution of claims for compensation under this section in the same way as it applies to the resolution of claims for compensation under section 198 of that Act.
25 Authority to enter premises
(1) A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the proprietor or manager of the premises.(2) The authority must be a written authority which is issued by the council and which:(a) states that it is issued under this Act, and(b) gives the name of the person to whom it is issued, and(c) describes the nature of the powers conferred and the source of the powers, and(d) states the date (if any) on which it expires, and(e) describes the kind of premises to which the power extends, and(f) bears the signature of the general manager of the council.(3) This section does not apply to a power conferred by a search warrant.
26 Relationship with other Acts
Nothing in this Division limits the exercise of powers or other functions by councils under the Local Government Act 1993 or any other Act.