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Legislative Assembly for the ACT: 1997 Week 5 Hansard (15 May) . . Page.. 1455 ..

MR HUMPHRIES (continuing):

The report contained 182 recommendations for a new Residential Tenancies Bill for the ACT. The recommendations represent a careful balance between the different interests of owners and tenants. The approach of the CLRC and the majority of its recommendations in the report received support from stakeholders during the consultation process. Subsequent to the tabling of the report, the CLRC has mediated and collated responses to the report. To assist consideration of the CLRC's recommendations, I tabled in the Assembly in December 1995 an exposure draft of the proposed legislation. More recently, the CLRC has been involved in preparations to include the Housing Trust within the scheme of the proposed legislation.

The need for an Act to replace the Landlord and Tenant Act 1949 has been accepted by all stakeholders involved in the process leading to and following the publication of the report. The 1949 Act is considerably dated, being made in the postwar environment of returning service personnel. One of the aims of the original reference was to realign the balance of interests between the parties and to standardise residential tenancy arrangements.

The recommendations of the CLRC have attracted careful consideration and critical support from all stakeholders. Following discussions with stakeholders during the preparation of the draft Bill by the CLRC and my department, I believe a number of departures from the recommendations of the CLRC are justified. These departures have been kept to a minimum and should not affect the overall balance sought by the CLRC. The most important departures from the original recommendations relate to the capacity of the parties to a tenancy to negotiate a tenancy agreement on the basis of the standard terms and the application of the proposed Bill to public housing.

In relation to the nature of a tenancy agreement, the CLRC recommended that the legislation include a standard tenancy agreement that would form the basis of all ACT tenancy agreements. The CLRC proposed that parties would not be able to contract out of this arrangement, although they would be able to include additional provisions in the agreement, provided they were consistent with the agreement.

While I accept the desirability of standardised obligations, I believe that parties should have more latitude in the way in which the tenancy agreement is drawn. Accordingly, in the exposure Bill I tabled in the Assembly in December 1995 the concept of the "standard tenancy agreement" was replaced by "standard terms". In the absence of negative comment and following further discussions with the Law Society and the Real Estate Institute, the proposed Bill confirms this approach and permits parties to contract out of the standard terms where they have had the protection of independent legal advice.

I believe that this approach captures the significant benefits of the original recommendations made by the CLRC, while allowing parties the capacity to craft their own agreements consistent with standard terms or, if they wish, by simply incorporating the standard terms. Provisions in the Bill accommodate the few cases where parties may need and agree to contract out of the standard terms.

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