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Legislative Assembly for the ACT: 1997 Week 11 Hansard (6 November) . . Page.. 3792 ..

MS TUCKER (continuing):

The only other major issue dealt with in these amendments is about how we bring ACT Housing tenants into the coverage of the Act. As with private tenancy agreements, there will be a staggered introduction. We are happy with the proposal that any new agreement signed after the commencement of the legislation will be covered immediately, and all ACT Housing and private tenants will be covered by all sections of the legislation by the year 2000. Obviously, there needs to be some flexibility when the Act first comes into force, particularly for ACT Housing. This must be balanced with the need to ensure that tenants are protected as soon as possible. I think a good balance has been struck - one that is in line with the recommendations of the Community Law Reform Committee. ACT Housing tenants will, in fact, be covered earlier than private tenants in relation to urgent repairs, as it will come into force at the time of the first price review in October 1998. I commend these amendments to the Assembly.

MR HUMPHRIES (Attorney-General) (6.18): Mr Speaker, the Government has a number of concerns about some of the provisions in these amendments. I realise that they are supported by a majority in the Assembly, so I do not propose to call for divisions on them; but I want to put on record the Government's concerns about those provisions. I suspect that in some cases we will come back to revisit these issues because in practice, when they are applied out in the community, there will be a problem and people will petition the Assembly to change them. That is why I am relatively relaxed about these provisions at the moment.

The first and perhaps most serious issue that the Government has concerns about is the provisions about contracting out. The provisions in the legislation were intended to provide that parties in certain circumstances could contract out of the standard agreement - that is, the provisions contained in the Schedule to the Bill - where they wanted to do so and where they obtained independent legal advice to explain to them the consequences of doing so. I make it clear that the essential provisions in the Bill cannot be contracted out of; but provisions in the Schedule, which are arguably second order issues, can be contracted out of if parties want to and they have advice to that effect. The effect of the amendments that have been put forward is to remove the capacity to contract out unless the parties go to the tribunal itself and seek an order from the tribunal that they may contract in a different way.

My view, Mr Speaker, is that it is most unlikely that many people are going to go to the trouble of approaching a court - that is what it amounts to - to seek the approval of a court for them to cross out a paragraph or write in some extra words in a tenancy agreement. In the vast majority of cases that is going to be seen as simply too much trouble. What will happen is that people will walk away from that agreement and say, "I am sorry; I do not want to do this. I will go and find someone else to rent me some premises", or, "I will have to find another tenant for these premises". That, Mr Speaker, I think, is unfortunate.

The assumption behind the restriction here, the very high threshold, is that people somehow will be prevailed upon by avaricious landlords and that the inequity in the power relationship, which I fully acknowledge, Ms Tucker - I do not pretend it is anything other than that - will be such that the tenant will be forced to accept conditions that he or she does not want. I think that we are, in that arrangement, lumping together those who are prevailed upon by those sorts of landlords, and who need to be protected,

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