WA Consumer Legislation Amendment Bill: Toppling Furniture and Other Changes

Monday 15 October 2018 @ 10.25 a.m. | Corporate & Regulatory | Trade & Commerce

Last week on Wednesday, 10 October 2018, the Consumer Protection Legislation Amendment Bill 2018 (the Bill) was introduced into the WA Parliament by the Minister for Commerce and Industrial Relations. The Bill makes a wide range of changes to Western Australian consumer, tenancy and building laws. Notable among the changes is the introduction of an important change relating to tenants being allowed to affix furniture to walls to prevent it from toppling over and causing injury, and as a result the bill has become known as "the toppling furniture Bill". 

Toppling Furniture Amendment

The toppling furniture changes proposed by the Bill follow from the recommendations of the WA Coroner’s report, delivered in November 2017, into the death of a 21-month-old child tragically killed in his family’s rental home by a falling chest of drawers in 2015. Evidence at the inquest revealed the drawers had not been secured because the landlord did not give permission for such to take place. In the report the Coroner found that the child, after waking up from his nap and while playing in his bedroom, came in contact with the chest of drawers, which toppled forward onto him. 

In making the report the Coroner considered a separate report by the Western Australian Product Advocacy Network which found that there were 271 furniture-related injuries to children in the five-year period up to December 2016 in WA. Among these injuries, 148 involved furniture toppling over, and the most common piece of furniture involved was chests of drawers, and then television cabinets.

The Coroner's view from the evidence was that the problem with efforts to raise safety standards was that under legislation governing residential tenancies: "landlords are entitled to decline consent to a tenant affixing any fixture".

As a result, the Coroner recommended the Government consider amending the Residential Tenancies Act 1987 (WA) ("the RTA") to ensure a landlord cannot stop a tenant from affixing furniture, "if the fixture relates to anchoring a television or item of furniture to a wall for the purposes of child safety... Rather, the Act should provide that for those specific fixtures, such an item may be affixed with the lessor's consent [and the lessor shall not unreasonably withhold such consent]."

Following from the above section 47 of the RTA is proposed to be amended to provide for the circumstances in which a tenant may affix items and remove fixtures. Clause 67 of the Bill proposes to insert an new subsection 2A to provide that a tenant may affix furniture to the walls of the rental premises for the purposes of ensuring the safety of a child with the consent of the lessor. The consent may only be withheld in specifically identified circumstances which are set out in the subsection and are:

  • where the fixture would disturb asbestos building material;
  • where the premises is heritage listed; or
  • where the premises is a lot in a strata complex and the bylaws prohibit the affixing of items to internal walls.

The proposed subsection also provides for additional conditions to be prescribed as follows:

  • the tenant must remove the fixture when vacating the premises;
  • the tenant is responsible for the cost of installing and removing the fixture; and
  • the tenant is responsible for repairing, or paying to the lessor, and the reasonable cost of repairing, any damage caused by the fixture.

Detail of other Amendments Proposed 

The Bill will make the following proposed amendments:

  • it will provide the Commissioner for Consumer Protection (the Commissioner) with enhanced powers for monitoring compliance with the requirements of the Charitable Collections Act 1946 (WA) and investigating suspected non-compliance and with authority to make decisions in relation to licensing;
  • it will make clearer provisions in the RTA relating to the representation of the parties at court hearings, the consequences of damage to common property, the fixing of furniture for the purposes of child safety and the apportionment of utilities charges;
  • it will insert a provision into the RTA to enable the Commissioner to prosecute residential tenancy database operators based in other jurisdictions for offences in relation to the management of the data of WA consumers;
  • it will amend the provisions dealing with the ". . . furnishing of false and misleading information" to the Department of Mines, Industry Regulation and Safety ("the Department") in the Land Valuers Licensing Act 1978, and the Real Estate and Business Agents Act 1978 ("REBA Act") and the Settlement Agents Act 1981 ("SAA") to better align the licensing schemes and facilitate the online lodgement of information;
  • it will amend relevant provisions in the REBA Act and SAA to permit claims against the fidelity funds to be made up to six months after the expiry of an agent’s licence and triennial certificate;
  • it will amend relevant provisions in the REBA Act to permit an allegation against an agent to be dealt with by the State Administrative Tribunal after expiry of their licence;
  • it will amend the Home Building Contracts Act 1991 ("the HBCA") to clarify the circumstances in which cover will be provided under the home indemnity insurance scheme to consumers affected by the default of a builder;
  • it will adjust outdated penalties in a range of Acts administered by the Department to ensure that they are broadly consistent with penalties for similar offences in other legislation and in line with community expectations and that they also continue to provide an effective deterrent. Some penalties have increased significantly as a result of not having been adjusted for some time; and in addition provide an option for imposition of a term of imprisonment for serious defalcations by real estate and settlement agents. 

Next Steps

As already indicated,the Bill makes amendments to a range of Acts administered by the Department to implement the recommendation of the WA Coroner and to increase outdated penalties and provide for "more efficient and effective regulation". The explanatory memorandum indicates the Bill, once enacted, will commence on proclamation but clause 2 also points out that there may be some delay in the commencement of sections 52 and 81 as they involve the introduction of a new option of imprisonment for some offences and will require amendments to the Integrated Courts Management System in consultation with the Department of Justice. The remaining provisions according to the explanatory memorandum will commence as soon as supporting Regulations have been prepared.

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