I make no comment here about the fault or liability of any party in this very sad case – just some general comments on how the safety of children is addressed in New South Wales renting laws.
There's a few provisions of the Residential Tenancies Act 1987 (NSW) that are relevant to child safety, but with a single notable exception, the Act makes no provision for particular safety devices to be installed or for particular safety standards to be met.
Those provisions are:
- the habitability term. Under the Act, it is a term of every tenancy agreement that the landlord will provide the premises in a state fit for habitation.
- the repairs and maintenance term: it is also a term of every agreement that the landlord will provide and maintain the premises in a state of reasonable repair (and just what 'reasonable' means depends on the amount of rent payable and the age and prospective life of the premises).
- the locks and security term. It is also a term of every agreement that the landlord will provide locks and security devices sufficient to make the premises reasonably secure. (What's 'reasonably secure' depends on the circumstances, especially location. It also means that the landlord does not need to make the premises Fort Knox.)
These obligations are all generally stated - that is, they don't specify particular devices that need to be installed for the premises to be regarded as habitable, in a reasonable state of repair, or secure. That's all very well – it's good that our laws provide this general obligation – but it also means that if you want the landlord to install a specific safety device, you might have difficulty: for example, if you want a child-proof lock on the window, the landlord might reply 'no, the lock already on the window is sufficient to make the premises reasonably secure', or even 'no, the window is sufficiently high up that it does not need a lock to make the premises reasonably secure.'
This problem also arises in relation to residual current detectors (sometimes known as electrical safety switches), which switch off the electricity if they detect it zapping a person. RCDs were not required on electrical circuits before 1991, so many houses built before then don't have them. And if your house doesn't have them and you ask for them, be prepared for the landlord to reply 'no, the premises are habitable/in a reasonable state of repair without them.'
I mentioned a single exception to the no-specific-requirements approach of our renting laws. Smoke detectors are specifically required in all residential dwellings, and there's a term to that effect in every tenancy agreement. This requirement was inserted by the NSW State Government in 2005 and, to the TU's knowledge, has improved the safety of rental housing without any dramas.
It would be a good idea if our renting laws built on the general obligations they already provide with some new, specific obligations for landlords to improve their properties. Devices to promote child safety – in particular, child-proof window locks and electrical safety switches – would be an excellent place to start. (Western Australia and Queensland have each already moved to make RCDs specifically required in rental housing.) After that, some other types of specific improvements might be required – say, insulation and water efficient devices – in a rolling program to lift the standard of rental housing.
In the meantime, readers might be interested in the advice of Danny Cass from Westmead Children's Hospital, reported at the second link above.
Rather than wait for the government to pass legislation for better building design, Professor Cass urged parents to ensure windows accessible to children could not be opened by more than 10 centimetres.
A visit to a hardware store, he said, could enable parents to alter windows themselves at a cost of $10.
"So for the vertical ones, that's a Black and Decker and two drills and coach screws, and for the aluminium ones, a rod that just sits in the gutter or two little aluminium screws that screw down," he said.