Page 2068 - Week 07 - Tuesday, 28 May 1991
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The proposed subsection (5A) makes it an offence to fail to lodge the condition report. As we indicated in the earlier remarks, we think that is an important provision. Not only should it be sanctioned by an evidentiary burden on landlords who fail to provide the report, but also it should be the subject of proceedings possibly being brought against them for failure to follow the Act, just as any other failure to follow an Act normally results in the possibility of a criminal conviction.
The amendment, which caused further amendment, which I will speak to now, also on the sheet circulated under my name - which amends proposed subsection (6) to say that a person shall not be prosecuted for contravention of "subsection (3)" rather than "this section" - means that the only exemption from the possibility of a criminal conviction is that the tenant who fails to get the condition report back in time should not be prosecuted for the offence. I think that is an issue on which there would be common ground across the chamber. Like those representatives of tenants' interests who originally brought to our attention the need for a penalty to relate to a landlord who fails to send in the report, we would not want to similarly penalise a tenant who, probably through ignorance of the law, difficulty with the English language or whatever, may not get around to sending the condition report back.
If the tenant does not send the condition report back or does not avail themselves of the opportunity to comment on the condition report, then, of course, they will not be able to rely on it effectively in any later proceedings, but it would be inappropriate to penalise them by the criminal law. But we think that it is appropriate that the ACT legislation be in line with legislation in other places. Landlords who fail to follow their requirements under the Act should be liable to some prosecution, as is the ordinary course.
The penalty, as we suggested, is only $500. This is not a major matter. It is not of the same order as failing to actually lodge the bond, which involves the possibility of doing things with someone else's money that should not be done. This is simply a housekeeping matter, but it is appropriate that there be a small penalty. I commend the amendment to the Attorney's consideration.
MRS GRASSBY (8.10): I also wish to refer to proposed section 62AG, which relates to the condition reports. I did speak to the Attorney-General about this. The report should be signed by both tenant and landlord. However, as it stands, the tenant does not have to sign it. It would be possible for a landlord to draw up a condition report and either not present it to the tenant or present it in such a way that the tenant does not feel obliged to return the signed copy to the landlord.
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