Page 2653 - Week 09 - Wednesday, 24 August 1994
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MR HUMPHRIES: We can come back to that another day. Perhaps I can make a personal explanation and we can have it all thrashed out, but to avoid the risk of having the bristles on the back of the Speaker's neck pop up I will refrain from that at this stage and say instead that there are some areas of concern which I hope that the Government will take into account. I realise that the Government is still in the process of negotiating the detail of this legislation - the terms of the Bill - and the code of practice with the parties concerned. Of course, we all hope that the detail will be sorted out at that level rather than here on the floor of the Assembly. I believe that it is true to say that, if we have to argue here about what terms this Bill should have and about the issues which have been thrashed out in round table discussions which I understand the Consumer Affairs Bureau is engineering, then to some extent we will have failed. At that stage there would be clearly a breakdown in the capacity of the parties themselves to set the terms which they consider fair and reasonable.
The first of the things which give rise to some concern, as far as I am concerned, is the element of potential retrospectivity in the operation of this legislation which the Scrutiny of Bills Committee identified. I think particular reference was made to the practice of ratchet or key money being exacted from tenants. The Attorney-General has written back to the committee about its original concerns and has indicated that he accepts that there is a certain element of that but argues that it is defensible. My party's views on retrospectivity are well known, and I will not go through them again; but I hope that that element can be kept to a minimum, to put it mildly.
I am also concerned about the definition of harsh and unconscionable dealing within the terms of the legislation. That term is not defined in the Bill. Although it has had judicial interpretation in other contexts, that may not be of use within the purview of the ACT's Commercial and Tenancy Tribunal. If we expect people not to engage in conduct which is amorphously described as harsh and unconscionable, we will perhaps engender that element of uncertainty which this entire package should be designed to avoid. I know that both the Building Owners and Managers Association and the Law Society of the Territory have raised concerns about the effect of those definitions. I simply note those concerns and hope that they can be properly dealt with.
The other major issue which the Assembly may, but I hope does not, have to deal with concerns leases that are to be renewed. The present legislation limits the freedom of a landlord to set new conditions in a lease when a lease expires and a renewal of that lease is sought by either the landlord or the tenant. In those circumstances certain rules governed by the legislation come into play, and those rules may effectively prevent a landlord from setting the rent, for instance, that he or she wishes to charge in respect of premises. That is, I admit, a considerable intrusion on the principle that a landlord is entitled to offer premises at a rental that he or she considers reasonable and to see whether he or she can get a better price from someone else. It would be unfortunate if the effect of this provision were that, rather than leases being renewed, they were automatically terminated at the end of the lease period and the landlord engaged in a process of simply calling for new tenants to take up a lease in order to avoid the operation of these provisions. Again, Madam Speaker, I indicate that these areas of concern can be dealt with through negotiation between the parties.
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