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Legislative Assembly for the ACT: 1997 Week 11 Hansard (6 November) . . Page.. 3793 ..

MR HUMPHRIES (continuing):

and those people who are quite capable of making an independent decision about what they want for themselves in a tenancy arrangement and who want to contract out of a particular arrangement but cannot do so except by going down the path of going to the tribunal.

I will give you some examples of the sorts of arrangements where you might want to contract out of a standard agreement. A person wants to rent premises which are extremely dilapidated. The trade-off is that they get the rent at a very low rate and they say to the landlord, "Look, you give this place to me at a low rent and I will do it up over a period of time. At the end of the tenancy I will have had a cheap place to live and you will have an improved house". That is a very good arrangement. Most people think it is a great idea. But that means contracting out of the prescribed term in respect of the condition of the premises and the repair obligation which falls on the landlord in the standard agreement. Okay; the landlord and the tenant can trot along to the Residential Tenancies Tribunal and make an application which could cost, depending on whether they feel they need representation or not, anything between $50 and $500. But clearly, Mr Speaker, the tenant in these circumstances is going to be the sort of person who does not have much money. He would not be going into that kind of tenancy if he had much money. He does not want to have to incur those sorts of costs in that forum and will be likely to be dissuaded from entering into such an agreement in those circumstances.

The provision that the Liberal Party actually tendered as its preferred position in these circumstances was that the parties should be able to apply to the registrar of the Residential Tenancies Tribunal to get approval of those conditions. It has not yet been explained to me, and I look forward to some explanation of this, why the registrar is not capable, in a low cost and informal way, of agreeing to inconsistent provisions where they appear to be appropriate. You could even provide for a cut-in provision where the registrar says, "I am not sure about this; this had better go to the full tribunal". That kind of provision would be reasonable. To say that every application has to go before the tribunal is, I think, to be excessively onerous and will result in many people simply walking away from a tenancy arrangement which they do not believe they can afford to pursue because of that very high burden placed on them to get the agreement varied.

The other danger, Madam Deputy Speaker, is that we are going to find many situations, I suspect, where people will contract out of the arrangements in ignorance of the way that the law is drafted. People do it every day of the week. They vary tenancy agreements. They cross out a clause there or they add a bit there. They will do that unwittingly, not realising that they are in fact in breach of the legislation. They will do that and then at some point down the track one of the parties will discover that the agreement is potentially void because they have contracted out of an essential provision. It might not be the party who is at fault in that situation who is, in fact, going to come off worst. It might be the party who is not at fault who does it in those circumstances.

Madam Deputy Speaker, I think that provision is unwise. I think we will find, over a period of time, people coming to the Government and the Assembly and saying, "I lost three tenants because I could not get them to come to the court with me". I think we should reconsider that provision, and I look forward to being able to do that at some point in the future.

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