The Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 (Vic) (Regulations) were released on 13 May 2020.

The Regulations provide a new process and set of rules for the adjudication of disputes arising from tenants seeking residential rent relief during the COVID-19 pandemic.

The Regulations were foreshadowed when the COVID-19 Omnibus (Emergency Measures) Act introduced COVID-19 temporary amendments to the Residential Tenancies Act 1997 (Vic) (Act) on 23 April 2020.

Key points:

  • There is now a ‘first stop’ on the way to VCAT for Victorian landlords and tenants seeking a binding adjudication of their dispute about residential rent payment issues. It appears this is to stop a flood of payment related disputes between tenants and landlords above what VCAT’s resources can handle, and to assist the parties (if possible) to reach a mutually agreeable outcome.
  • Parties to an eligible dispute cannot apply directly to VCAT to hear the dispute. Instead, Consumer Affairs Victoria will be responsible for triaging eligible disputes of which it becomes aware (whether by request from the landlord, tenant, “by referral or otherwise”) and sending them either to VCAT or to the Chief Dispute Resolution Officer (whose office was established in the April amendments to the Act) (Officer).
  • Eligible disputes relating to a payment related matter will generally be referred to the Officer, with non-payment related matters being referred to VCAT (together with disputes that the Officer considers are not appropriate for alternative dispute resolution or where alternative dispute resolution is not successful in resolving the dispute).
  • Non-VCAT disputes are to be resolved by alternative dispute resolution methods – they may be sent to mediation, conciliation, or the Officer (or a delegate) may determine the dispute.
  • The Regulations are in force until 26 September 2020.

Relevant Definitions

  • An ‘eligible agreement’ subject to this process includes residential tenancy agreements (including those for rooming houses), site agreements relating to caravan park dwellings, and SDA agreements relating to special disability accommodation.
  • An ‘eligible dispute’ is a dispute about a matter arising from an eligible agreement, or an alleged breach of an eligible agreement or a provision of the Act or regulations, or a breach of duty relating to a residency right.
  • A ‘payment related matter’ is a matter relating to a residential tenant’s application to reduce rent payable, or an application for a payment plan, able to be made under the April amendments to residential tenancies laws. This includes a matter in respect of which an application could be made, even if it has not yet been made. It does not include disputes about payment of bond or a landlord’s application to terminate an agreement due to the tenant’s failure to pay rent (if the tenant could have done so without suffering severe hardship).

What the Officer can do

The Regulations set out the functions of the Officer, which include:

  • Assessing an eligible dispute’s suitability for alternative dispute resolution (ADR).
  • Conducting the ADR (by mediation, conciliation or determining the dispute).
  • Issuing guidelines and practice directions regarding disputes and ADR processes.
  • Delegating its functions to certain mediators, conciliation officers and other ADR providers identified in the Regulations.

The Officer may refer a dispute on to VCAT if the Officer decides that a dispute is not suitable for ADR, or if ADR is unsuccessful in resolving the dispute. Interestingly, the Officer may ‘split’ the dispute and refer the non-payment related part of the dispute to VCAT.

Parties to a dispute are required to cooperate and provide information requested by the Officer.

Orders by the Officer

The Officer and delegates must decide whether it is fair and reasonable to make a dispute resolution order. This can either occur with the parties’ consent after mediation or conciliation, where mediation or conciliation was unsuccessful in resolving the dispute, or by the Officer or delegate without first conducting mediation or conciliation.

The types of orders the Officer or delegate may make include to reduce rent payable and to enact a rent payment plan for a residential tenancy.

There are limits to the orders that the Officer or delegates can make; some powers remain reserved for VCAT (for example, terminating a lease, reducing the term of a fixed term lease, and possession orders). The Regulations also include rules relating to the conduct of the ADR, including the use of evidence in future VCAT hearings and the Officer’s (and delegates’) obligations of confidentiality.

Transitional provisions apply – VCAT hearings that had already commenced when the Regulations came into force may continue and are not affected.