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Legislative Assembly for the ACT: 1996 Week 10 Hansard (4 September) . . Page.. 3102 ..

MS HORODNY (continuing):

The Tenancy Tribunal Act and the code of practice have a number of deficiencies. It is ironic that legislation that was supposed to help small retailers and reverse some of the power imbalances between landlords and tenants was watered down by Labor and Liberal voting together. Some of the problems with the code are that it has only limited application to existing leases; there is no right to renew leases; and there is no right to compensation where a landlord refuses consent to the transfer of a lease. Another problem is that disputes about multiple rent review clauses or ratchet clauses are currently not covered by the Tenancy Act if the leases were entered into before 1 January 1994. Another problem is that claims by a party to a lease that another party to that lease has breached or is breaching that lease are not covered by the Tenancy Act if the lease was entered into before 1 January 1995. The Bill and the amendments before us are an attempt to fix some of those problems.

There has been some confusion about Mr Moore's Bill and this issue of retrospectivity. After discussions with him about the confusion, he has produced these amendments which we are more than happy to support. The Greens received a copy of the Government's legal advice, and we accepted the concerns about applying the code and the Act to conduct retrospectively. I would like to clarify what these amendments are achieving and point out the areas that still need to be looked at from the point of view of equity in the retail market. Firstly, the issue of retrospectivity needs resolving once and for all. There is no question that the code should apply to conduct retrospectively, but I think the explanatory notes that Mr Moore has circulated with these amendments still might confuse the issue a bit.

The third paragraph in the explanatory notes, which is bolded, says that this amendment specifies that only if the breach of conduct occurred after 1 January 1995 could those tenants who entered into a lease prior to that time have right of access to the tribunal. This is not correct. This Bill, if passed, with the amendments, will apply the code only to conduct that occurs after the commencement of this Bill; that is, it will be prospective in operation. It will make the existing rules apply to existing leases in a way that is fair to both landlord and tenant. Where this amendment will make a difference will be in the areas of rent review, including all provisions about valuations for market rent and outgoings; for example, preventing claims for depreciation, costs and outgoings. Furthermore, the landlord will have to comply with budget and audit provisions in the code. It will also give tenants rights in relation to interference by landlords. Landlords will in future be liable for compensation for disturbances, relocations, demolitions and so forth. It will also clear up the rights of a tenant to transfer a lease and will apply the existing minimal rights in relation to seeking renewal and issues such as trading hours and relocations in shopping centres.

While these rights will now extend to leases entered into before 1 January 1995, none of these issues will apply retrospectively; that is, to conduct that occurred in the past. What this amendment is not intended to address is problems that are inherent in the code. The code still needs to be improved in many ways; for example, tenants' rights in relation to exclusivity, that is, if a tenant thinks they have exclusive rights to sell Easter eggs, for example, and then a major retailer starts selling them. There are also rights to renew and the rights of tenants to dispute excessive rents; for example, calling rent that is more than market rent key money.

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