Safety in the Home: The Law

Potential exposure to carbon monoxide poisoning is indicative of a much wider problem. In no state or territory is there an explicit general right to safe and healthy premises. In this instalment, I will look at how the law fails tenants. If you’re not interested in the law, then go ahead and skip this post – I won’t be offended.

Some states and territories touch on safety. One approach is to require landlords to comply with statutory obligations relating to the health and safety of the premises. For example, section 52(3) of the NSW Act states that, ‘A landlord must comply with the landlord’s statutory obligations relating to the health or safety of the residential premises’. Note how the provision specifies legislation rather than regulations.

Section 42(2) of the WA Act is similar. It provides ‘lessors must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises’. It does not specify what these laws are. It does not detail any requirements. This would be preferable so that tenants actually know what their rights are. A tenant should not have to be an expert in council law to understand their rights. When I have time, I will take a sqiz at council laws.

Another approach is to require landlords to ensure there are no breaches of health and safety laws at the start of the tenancy. Section 185(2) of the Qld Act states that the lessor must ensure at the start of the tenancy that ‘the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises’. But what about problems that crop up during the tenancy?

The NT Act is similar. Section 47 prohibits a landlord from offering or entering into a tenancy agreement unless the premises meet all health and safety requirements specified under an Act. I would really like to know how this is policed and enforced in practice. And I really don’t think renters have the power to have demand safety measures in the current rental market.

In Victoria, a tenant has a right to terminate the tenancy agreement if the premises are unsafe. But I’m not actually sure this is the remedy most tenants actually want. I’m sure they would rather repairs to be carried out so they don’t have to move. The landlord can then lease the premises again without rectifying any defects. In this jurisdiction, it is notoriously difficult to obtain repairs.

The ACT was on the right track. In 2011, the Greens introduced a bill based on minimum housing standards. It would have facilitated the right to healthy and safe premises. But the government negatived the implementation of a of minimum standards scheme. It took the view that ‘direct costs’ imposed on landlords would pass on the costs of improvements or stop renting out properties. The argument is simply unsound. Businesses bear costs imposed by government regulation as a matter of course. And secondly, the government regulates safety in the workplace, and it is otherwise considered legitimate for business to bear such costs.

In Tasmania, a bill enshrining minimum housing standards has been approved by the Tasmanian Parliament. The proposed minimum standards include:

• Weatherproof and structurally sound premises
• Council approved toilet, washbasin, and a bath and/or shower with hot and cold water
• Adequate natural or artificial light in every room
• At least one fixed heating device in the main living area
• Adequate ventilation in the premises

But the Commissioner of Tenancies may grant exemptions for some or all of these standards. And some standards will not come into force for three years.

The law has abandoned the safety of tenants and their families. In all jurisdictions, the protection offered to tenants is weak at best. There’s loads of wriggle room. We should start looking at some kind of licensing system. If a landlord can’t prove premises are safe, they should not be allowed to lease it. Simple as that, really. 

PS. I am less than impressed with South Australia. I did not find one single mention of safety in its residential tenancy law.