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Compulsory meth test?

Monday, March 21, 2016

      

APIA Ask An ExpertI received a phone call from a letting agent saying that after 4th April 2016 there will be mandatory meth testing for all rental properties pre-letting and that landlords will be penalised severely if traces of meth is being detected.  Can you confirm that it is correct? 

APIA Ask An Expert

No, we cannot confirm that statement as being absolute correct.  However the date 4th of April is telling (being from when the new Health and Safety at Work Act comes into effect) so this matter warrants further examination.

Related article: How will landlords be affected by the new workplace health and safety law?

Firstly, to date we have received no notification from any government agencies requiring landlords to carry out mandatory methamphetamine tests at rental properties although we recommend that our members carry out routine testings (pre and post tenancy) as good practice.  

Secondly, upon forwarding this enquiry to the Ministry of Business Innovation and Employment, we obtained the following response: 

... [upon confirming with then] Housing Market Policy, Communication and Compliance teams within MBIE Market Services, as well as Worksafe... [it has been confirmed that MBIE has] not released the information about mandatory methamphetamine testing.  To reiterate ... MBIE is working on changes to the Residential Tenancies Act for new requirements for insulation and smoke alarms.  The proposed requirements for smoke alarms and insulation will not include mandatory testing requirements for methamphetamine. Details are available online here.

Kristine King from Duncan King Law further clarifies, 

 

Whilst mandatory methamphetamine testing will not be part of our laws in the near future, it may be that individual organisations including letting agents will adopt this requirement as part of their internal health and safety policy from 4 April. This would be done to push the liability for testing to the owners. Accordingly we recommend that owners contact organisations such as their letting agents and insurers and enquire as to their requirements for methamphetamine testing.

 

We have reached out to Worksafe and have been advised, verbally, that the new HSWA is a principal based piece of legislation which does not contain a black and white list of known hazards and it certainly makes no specific mention of methamphetamine tests at rental properties.  However, landlords (as PCBUs under the Act) have a duty of investigating further and mitigating a known potential/or suspected risk.  General ignorance will not likely be a defence.  We are in the process of obtaining an written opinion form Worksafe to circulate to our members.  

Related article: How to stop tenants from 'breaking bad'?

But just because there is no absolute legal authority from the HSWA for mandatory methamphetamine testing doesn't mean routine tests should not be carried out.  S45 of the RTA is authority for landlords being bound by the HSWA insofar as the rental property is concerned.  Which means that as PCBUs, landlords will need to take all reasonably practicable steps to eliminate or minimise any workplace health and safety risks.  To determine what is 'reasonably practicable' will require the weighing up of a known risk (methamphetamine laboratories) versus the practicality of appropriate preventative measures (such as pre- and post- tenancy screening).  

A Worksafe spokesperson explains that health and safety issues should be considered against a number of factors,

 

What is reasonably practicable takes into account how much is commonly known about the risks involved, as well as the recognised ways of eliminating and minimising them... The availability and cost of safeguards should also be considered. The question is not whether the business has the cash on hand to pay for the solution, but rather whether the cost is proportionate to the harm that could result. No one expects NASA-type technology where the risk is relatively low and a cost-effective and simple solution could work just as well.

 

Various legal opinions take different views as to where that balance is.  Suffice to say that on the subject of mandatory methamphetamine testing there is no black and white answer at this stage although routine and thorough testing is good practice to ensure that your rental properties are meth free.  

Disclaimer - The answer provided above is informational and should not be relied upon as legal advice.  For personalised legal advice, please feel free to contact your professional legal advisor directly.  

 

 

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