Impacts of the Use of a Family Violence Report to Determine Interests in Residential Tenancy Agreements: A Comparative Study Between Western Australian and Albertan (Canada) Legislation

Residential Tenancies Act 1987 (WA) s 5 (‘RTA’). The RTA covers Western Australian express and implied agreements in which a person is granted a right to occupy all or part of a residential premise for the purpose of residence in exchange for consideration: at ss 3 (definition of ‘residential premises’), (definition of ‘residential tenancy agreement’), 5(1). Residential tenancy (‘RT’) agreements that are strata leases as defined in the Strata Titles Act 1985 (WA), are less than one month in duration where the tenant is in an agreement for the sale and purchase of the premises, arise under schemes in which a person who has controlling interest in a company owning a group of adjacent premises resides in one of those premises, are bona fide agreements conferring a right of occupancy for the purpose of a holiday, involve a lessor that is acting on behalf of the Crown, or involve a boarder or lodger are not covered by the provisions: at ss 5(1A)-(2). Hotels and motels, certain accommodations for students, hospitals and nursing homes, premises used for the purposes of a club, residential care homes as defined in the Aged Care Act 1997 (Cth), and prescribed premises, are not covered by the provisions: at s 5(3).

Residential Parks (Long-stay Tenants) Act 2006 (WA) ss 6-7 (‘RPLTA’). The RPLTA covers RT agreements that are three months or longer in caravan parks and sites where relocatable homes may be situated: at ss 5(1) (definition of ‘long-stay agreement’), 5B, 6-7.

See below nn 47–60 and accompanying text.

Explanatory Memorandum, Residential Tenancies Legislation Amendment (Family Violence) Bill 2018 (‘Explanatory Memorandum’).

Webb et al. [1].

Residential Tenancies Act, SA 2004, c R-17.1, s 2(1) (‘RTAA’).

Koshan [2].

Webb et al. (n 5) 14.

Constitution of the Commonwealth of Australia; Constitution Act 1982 (UK) c 11, sch B (‘Constitution Act 1982’); Constitution Act 1867 (Imp), 30 & 31 Vict, c 3 (‘Constitution Act 1867’).

Transfer of Land Act 1893 (WA); Land Titles Act, RSA 2000, c L-4.

The Albertan provisions were assented to on 11 December 2015; Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Act, 2015, SA 2015, c 20; In WA, the provisions commenced operation on 15 April 2019; Western Australia, Western Australian Government Gazette, No 44, 9 April 2019, 1042.

In WA, see Western Australian Government Department for Child Protection and Family Support Freedom from Fear—Working Towards the Elimination of Family and Domestic Violence in Western Australia (Action Plan, 2015); Government of Western Australia Department of Communities Path to Safety—Western Australia’s Strategy to Reduce Family and Domestic Violence 2020–2030 (Strategic Plan, 2020).

Family Law Act 1975 (Cth) s 4AB; Family Court Act 1997 (WA) s 9A; Restraining Orders Act 1997 (WA) (‘ROA’) s 5A.

Koshan (n 7).

RPLTA (n 2) s 3, Glossary s (1) (definition of ‘family violence’); RTA (n 1) s 3 (definition of ‘family violence’).

The included conduct listed consists of: assault, sexual assault or sexually abusive behaviour, stalking or cyber-stalking, repeated derogatory remarks, damaging or destroying property belonging to the victim (including causing death or injury to a pet), unreasonably denying financial autonomy or withholding financial support needed to meet reasonable living expenses, coercing, threatening or causing physical, emotional, psychological or financial abuse in connection with demanding or receiving dowry, preventing the victim from making or keeping family or friend connections, kidnapping or deprivation of liberty, distributing, or threatening to distribute intimate images without consent, and causing children to be exposed to any of this conduct; Ibid s 5A(2).

Ibid s 47.2(1).

Ibid s 47.2(2)(b).

Ibid s 47.2(2)(c).

Ibid s 47.2(2)(d).

Ibid s 47.2(2)(e).

Ibid s 47.2(2)(f).

Ibid s 47.2(1)(a).

There is no requirement that those in the dating relationship reside (or have resided) with each other; Ibid s 47.2(1)(b).

Regardless of their marital status or whether they have ever resided together; Ibid s 47.2(1)(c).

Regardless of whether they have resided together at any time; Ibid, s 47.2(1)(d).

Ibid s 47.2(1)(e).

The definition includes a personal representative, successor, or assignee, of the person granting the right of occupancy, and includes prospective or former lessors where context requires; RTA (n 1) s 3 (definition of ‘lessor’).

This includes prospective or former tenants where context requires; RTA (n 1) s 3 (definition of ‘tenant’).

RTA (n 1) s 71AD(1) (definition of ‘co-tenant’).

Hamilton (n 13) 247.

RPLTA (n 2) s 45B(1); RTA s 71AD(1).

RTA (n 1)s 71AB(2)(d)(i); RPLTA (n 2) s 45A(2)(d)(i).

RTA (n 1) s 71AB(2)(d)(ii); RPLTA (n 2) s 45A(2)(d)(ii).

RTA (n 1) s 71AB(2)(d)(iii); RPLTA (n 2) s 45A(2)(d)(iii).

RTA (n 1) s 71AB(2)(d)(iv); RPLTA (n 2) s 45A(2)(d)(iv); Interpretation Act 1984 (WA) s 5 (definition of ‘police officer’).

RTA (n 1) s 71AB(2)(d)(vi); Residential Tenancy Regulations reg 12CA(c) (‘RT Regulations’); Residential Parks (Long-stay Tenants) Regulations 2007 (WA) reg 13A(b) (‘RPLT Regulations’); Children and Community Services Act 2004 (WA) s 15.

RTA (n 1) s 71AB(2)(d)(vi); RT Regulations (n 51) reg 12CA(b); RPLTA (n 2) s 45A(2)(d)(vi); RPLT Regulations (n 51) reg 13A(b); Children and Community Services Act 2004 (WA) s 3 (definition of ‘officer’).

Person in charge of women’s refuge: RTA (n 1) s 71AB(2)(d)(v); RPLTA (n 2) s 45A(2)(d)(v). Person in charge of Aboriginal legal, health or welfare organisation: RTA (n 1) s 71AB(2)(d)(vi); RT Regulations (n 51) reg 12CA(a); RPLTA (n 2) s 45A(2)(d)(vi); RPLT Regulations (n 51) reg 13A(a).

Figure 1 was created by the researchers.

RPLTA (n 2) s 45B(2); RTA (n 1) s 71AD(2).

The lessor must make application for review within 7 days from receipt of the notice of termination; RPLTA (n 2) s 74A(2); RTA (n 1) s 71AC(2).

RPLTA (n 2) s 74A(3)(b); RTA (n 1) s 71AC(3)(b).

Or when the tenant vacates the premises, if later than the seven-day notice period; RPLTA (n 2) s 45A(5); RTA (n 1) s 71AB(5).

The lessor must provide notice to each co-tenant within 7 days of receipt of the notice advising of the terminating tenant’s interest; RPLTA (n 2) s 45B(2); RTA (n 1) s 71AD(2). Under the RTA (n 1), service can be given personally, by mail, or electronically (with the consent of the person receiving notice); RTA (n 1) s 85(1). Under the RPLTA, service can be given personally or by mail; RPLTA (n 2) s 91(1).

RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4). The co-tenant must provide the lessor with a minimum of 21 days’ notice should they wish to terminate their interest in the tenancy agreement; RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4).

Ibid 47.3(1).

Government of Alberta, ‘Safer Spaces Certificate to End Tenancy’, Alberta (Web Page, 25 October 2021) < https://​www.​alberta.​ca/​safer-spaces-certificate.​aspx > .

Figure 2 was created by the researchers.

Ibid s 47.3(2)(a).

Ibid s 47.3(4)(a).

Ibid s 47.3(4)(c).

Ibid s 47.3(4)(b).

Ibid s 47.4(2)(a)(i). Queen’s Bench Protection Orders (‘QBPO’) and Emergency Protection Orders (‘EPO’) can be obtained in Alberta under the Protection Against Family Violence Act, RSA 2000, c P-27, ss 2, 4 (‘PAFVA’).

Ibid s 47.4(2)(a)(ii).

RPLTA (n 2) s 45A(2)(d); RTA (n 1) s 71AB(2)(d). Professionals permitted to complete the statement under the RTAA (n 6) are: (i) regulated members of the College of Physicians and Surgeons of Alberta; RTAA (n 6) s 47.4(4)(a)(i), (ii) regulated members of the College and Association of Registered Nurses of Alberta: at s 47.4(4)(a)(ii), (iii) regulated members of the Alberta College of Social Workers: at s 47.4(4)(a)(iii), (iv) regulated members of the College of Alberta Psychologists: at 47.4(4)(a)(iv), (v) regulated members of the College of Registered Psychiatric Nurses of Alberta: at s 47.4(4)(a)(v), (vi) police officers or members of the Royal Canadian Mounted Police: at s 47.4(4)(b), (vii) individuals employed by agencies or organizations that assist individuals to whom the agency or organization provides accommodation in an emergency or transitional shelter because of homelessness or abuse: at s 47.4(4)(c)(i), (viii)individuals employed by agencies or organizations that assist individuals to whom the agency or organization provides support initiatives for victims of crime, if that individual is authorized by his or her employer to provide statements under this section: at s 47.4(4)(c)(ii), and (ix) any other person or member of a class of persons prescribed by regulation. At the time of writing, there were no such currently prescribed persons; Termination of Tenancy (Domestic Violence) Regulation, Alta Reg 130/2 (‘TTDVR’).

Ibid s 47.4(2). The designated authority must either issue the certificate or advise the applicant that the certificate will not be issued within 7 days of receipt of the application: at s 47.4(2)(3).

Ibid reg 3(b).

Ibid reg 3(b)(iii)(A).

Ibid reg 3(b)(iii)(B).

Ibid reg 3(b)(iii)(C).

Ibid s 47.3(6).

Ibid s 47.3(5)-(6).

Ibid s 47.3(5).

Ibid.

Ibid s 47.3(6).

Ibid s 47.3(7).

Ibid reg 4(2).

Ibid reg 4(1)(c).

Ibid reg 4(1)(3).

Ibid reg 4(1)(i).

Ibid reg 4(1)(d).

Ibid s 47.4(1).

Ibid s 47.3(2)(a).

Ibid s 47.2(1).

Ibid s 4(2)(b).

Ibid s 47.3(4)(c).

RPLTA (n 2) s 74C(5); RTA (n 1) s 17B(5).

RPLTA (n 2) s 74C(5)(a); RTA (n 1) s 17B(5)(a).

RPLTA (n 2) s 74C(5)(c); RTA (n 1) s 17B(5)(c).

RPLTA (n 2) s 74C(5)(d); RTA (n 1) s 17B(5)(d).

Ibid s 47.3(6).

Ibid s 47.3(2)(a).

Ibid s 47.3(5).

Ibid s 47.3(2)(a).

RPLTA (n 2) s 45A(7); RTA (n 1) s 71AB(5).

RPLTA (n 2) s 45A(1); RTA (n 1) s 71AB(1).

Ibid s 47.3(2)(a).

RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4).

RPLTA (n 2) s 45B(2); RTA (n 1) s 71AD(2).

RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4).

RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4).

RPLTA (n 2) s 74A(3)(b); RTA (n 1) s 71AC(3)(a).

Ibid s 47.3.

RPLTA (n 2) s 74A(2)(b); RTA (n 1) s 71AC(3)(b); RTAA (n 6) s 47.3(7).

ROA (n 17) s 5A(1); RTAA (n 6) s 47.2.

Ibid s 47.3(5).

Ibid s 47.3(2)(a); RPLTA (n 2) s 45A(5); RTA (n 1) s 71AB(5).

Ibid s 47.3(4)(d).

RPLTA (n 2) s 74A(2)(b); RTA (n 1) s 71AB(2)(b).

Ibid s 47.4.