Page 2062 - Week 07 - Tuesday, 28 May 1991
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We like what we see in relation to the condition reports, but we query why the Government has seen fit to differ from the Labor model by expressly saying, "A person is not liable to be prosecuted for a contravention of this section", which requires the lodgment of a condition report. I can well see why the penalty to be applied there may be lower than the fairly substantial $5,000 penalty that is provided for in section 62AE for a failure to lodge a deposit. Failure to lodge a deposit is obviously more serious. It may involve the withholding of moneys that ought properly to be under public control. But a failure to lodge a condition report does have serious consequences because it really subverts the intention of the Act which is to require this. So, I wonder whether the Government can come up with some logical explanation as to why this has been done.
This is in no sense landmark legislation because rental bond boards, as we have regularly pointed out, exist in virtually every other State and Territory in Australia, and certainly the New South Wales model, which was one of the first, does have that criminal provision. So, I would say to the Government that we would like to know why it sees fit to insert the new subsection 62AF(6), which says that there should not be a criminal penalty for failure to lodge a condition report. Unless we can see a satisfactory answer to that, we would be inclined to move an amendment. That is the first point.
The second point, again in relation to condition reports, goes to section 62AG, which is the evidentiary provision concerning the condition of premises. It is rather ironic that this point should arise because it reflects back almost precisely on the remarks that Mr Collaery and I were making about explanatory memorandums and how they can be improved. It has been put to the Labor Opposition that there is some degree of ambiguity in the provision in this Bill about the evidentiary effect of failure to lodge a condition report. In the Labor Bill, which, as has been pointed out, closely follows the provisions in other States, clause 16(4) says quite simply and clearly:
Where a condition report has not been provided to the Board pursuant to subsection (3) the Board shall not accept any application from the lessor ... for payment of the rental bond, or part of the rental bond, to the lessor on account of any damage to the premises allegedly caused by the lessee.
So it is fairly simple. It says that where one fails to lodge a condition report no dispute about damage to the property will be entertained. And that is obviously the intention here. If you are a landlord and you do not lodge the condition report, the clear sanction in our Bill is to say, "You cannot then make a claim against the tenant for damages". I think that that is what is intended in the government Bill. But it is a fairly complex and wordy provision.
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