Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper
7. Remedies
7.1 Depending on the circumstances surrounding the taking or use of advertising photographs and videos that contain their possessions, tenants may be able to seek relief from the Victorian Civil and Administrative Tribunal (VCAT) or the Office of the Australian Information Commissioner.
Victorian Civil and Administrative Tribunal
7.2 The aim of VCAT is to provide Victorians with ‘a low cost, accessible, efficient and independent tribunal’ in which they can resolve their civil and administrative disputes.[1] A VCAT application is currently $44.90.[2] However, an applicant may ask to have the fee waived if they cannot afford it.[3] Most tenants represent themselves, although they may be entitled to legal representation in certain circumstances.[4]
7.3 A recent amendment to the Victorian Civil and Administrative Tribunal Amendment Act 1998 (Vic) establishes the presumption that, in disputes involving tenants and landlords, VCAT will order the losing party to pay the winning party’s fees.[5] These changes will come into effect by 1 February 2015, if they are not proclaimed earlier.[6]
Restraining order
7.4 If a landlord or agent fails to exercise a right of entry in accordance with the Residential Tenancies Act 1997 (Vic) (‘the Act’),[7] a tenant may apply to VCAT for an order restraining the landlord or agent from exercising their right of entry for a specified period.[8] Failure to enter in accordance with the Act refers to the circumstances in which landlords and agents are allowed to enter, as well as to the notification and behavioural requirements landlords and agents are obliged to observe.[9] VCAT may issue a restraining order if ‘it is satisfied it is reasonable to do so.’[10]
Breach of duty notice
7.5 As discussed in Chapter 4, there appears to be limited scope to argue that the taking or use of photographs or videos that contain tenants’ possessions for advertising purposes constitutes a breach of the right to quiet enjoyment. However, if a tenant believed that the particular circumstances of their case amounted to a breach, the tenant could issue their landlord or agent with a breach of duty notice.[11]
7.6 As well as identifying the particular breach and the loss or damage caused, the breach of duty notice must require the landlord to remedy the breach within 14 days (if possible),[12] pay compensation and refrain from committing a similar breach again.[13] It must also state that if the notice is not complied with, the tenant may apply to VCAT for an order for compensation or compliance.[14]
7.7 If VCAT is satisfied that the person was entitled to give the notice and that the landlord or agent failed to comply with the notice, it may make an order for the landlord or agent to remedy the breach, pay compensation, and/or refrain from repeating the breach.[15]
Office of the Australian Information Commissioner
7.8 Before lodging a privacy complaint with the Office of the Australian Information Commissioner (OAIC), a tenant must complain directly to the landlord or agency involved in the dispute. If no response is received or the tenant is dissatisfied with the response, the tenant may then lodge a complaint in writing to the OAIC.[16]
7.9 Upon receiving a tenant’s complaint, the OAIC first ensures the behaviour and organisation concerned fall within the Privacy Act 1988 (Cth) (‘Privacy Act’). If a tenant’s complaint concerns personal information and the landlord or agent is subject to the Australian Privacy Principles, the OAIC may decide to investigate the complaint.[17]
7.10 The OAIC first attempts to facilitate conciliation in order to reach a mutually acceptable outcome. If an agreement is not reached and the OAIC believes the issue has not been adequately dealt with by the organisation involved, the Privacy Commissioner may make a formal decision stating what the organisation must do.[18]
7.11 Among the steps the organisation may need to take are apologising, changing business practices, training staff and providing compensation. If an organisation undertakes not to repeat the behaviour that breached the Privacy Act, and then repeats the behaviour, the Commissioner can ask for the undertaking to be enforced by a court. The Commissioner may also seek a civil penalty if the privacy breach is sufficiently serious.[19]
7.12 The Office of the Australian Information Commissioner will be disbanded by
1 January 2015. However, the Privacy Commissioner will continue to administer the Privacy Act.[20]
Question
- If you have been involved in a dispute about advertising photographs or videos that contained tenants’ possessions, how did you resolve the situation? Did you contact an organisation to ask for help and, if so, what happened?
[1] Victorian Civil and Administrative Tribunal, Annual Report 2011/2012 (2012) 2.
[2] Victorian Civil and Administrative Tribunal, VCAT fees effective from 1 July 2013 (24 May 2013) <https://www.vcat.vic.gov.au/news/vcat-fees-effective-1-june-2013>.
[3] Tenants Union of Victoria, Going to the Tribunal (May 2010) <https://www.tuv.org.au/articles/files/resources/Step-by-step_guide_to_going_to_Tribunal_AG_RT_052010.pdf>.
[4] Ibid.
[5] Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic) s 14 inserting div 8A in pt 4 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
[6] Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic) s 2.
[7] See [3.4]–[3.8] for an overview of the rights of landlords and agents to enter their property in Victoria.
[8] Residential Tenancies Act 1997 (Vic) s 91(1).
[9] Ibid s 91.
[10] Ibid s 91(2)(a).
[11] Residential Tenancies Act 1997 (Vic) s 208.
[12] Ibid s 207 defines ‘required time’. Pursuant to section 207, 14 days applies to the circumstances under consideration. In other circumstances, it may be three days.
[13] Ibid ss 208(2)(c)(ii)–(d).
[14] Ibid s 208(2)(e)(i).
[15] Ibid s 212(1).
[16] Office of the Australian Information Commissioner, Making a privacy complaint <http://www.oaic.gov.au/privacy/making-a-privacy-complaint>.
[17] Office of the Australian Information Commissioner, What happens to your privacy complaint <http://www.oaic.gov.au/privacy/what-happens-to-your-privacy-complaint>.
[18] Ibid.
[19] Ibid.
[20] Office of the Australian Information Commissioner, Australian Government’s Budget decision to disband the OAIC <http://www.oaic.gov.au/news-and-events/statements/>.
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