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Legislative Assembly for the ACT: 1997 Week 14 Hansard (10 December) . . Page.. 4804 ..

MR HUMPHRIES (continuing):

Mr Moore's Bill provides for a number of issues to be addressed in order to deal with the problems that he sees in the community from apparent weaknesses or deficiencies in the tenancy legislation and code before the community at the moment. I consider that the approach Mr Moore has taken goes too far in terms of addressing the problems that are obviously real and have given rise to this legislation. I think Mr Moore has rightly identified that excessive rent and practices surrounding rent remain as concerns in the ACT.

However, I think Mr Moore's proposal that the Tenancy Tribunal should, in effect, be allowed to review excessive rent is a provision which is too broad in its application. It effectively allows tenants - but not landlords, I note - to be able to reopen tenancy agreements and argue that the rent charge is excessive and should be reduced. I have a difficulty with intervening in commercial arrangements generally, particularly in cases where only one of the two parties is empowered to review arrangements which may have become unfair but the other is not given that same privilege. I think, baldly, that to allow a tenant to escape the provisions of the lease freely entered into is going too far, and I do not support that provision.

Mr Speaker, I do believe that we need to offer more protection than is currently available in the legislation. For that reason, I will shortly be moving amendments which do two things principally. One is to pick up a number of recommendations made unanimously in the working party report, which are supported, therefore, by landlords and tenants, to improve the operation of the Tenancy Tribunal Act. Secondly, and more importantly, they will adopt, in effect, the unconscionable conduct provisions which appear in the Federal Government's Trade Practices (Amendment) Bill which has recently been introduced into the Federal Parliament.

I think members have seen those provisions because they have been circulated. They allow for a tenant, or a landlord, for that matter, to come forward to the tribunal and to argue that provisions in an agreement are unconscionable, or the conduct engaged in by the other party is unconscionable, and that relief from those provisions or that conduct ought to be provided. The matters which the tribunal may have regard to are set out, and the relief that is available is also set out in that proposed clause in the legislation.

Why replicate a provision which is already available in the Trade Practices Act? The answer to that is that the provisions are accessible, in the Federal case, through higher courts - through bodies such as the Supreme Court or perhaps the Administrative Appeals Tribunal - but tenants, or landlords, for that matter, will very often be in the setting of the Tenancy Tribunal when they seek to access provisions of that kind. A provision which makes it accessible at that level is appropriate and I therefore urge members to adopt this provision as a means of being able to protect tenants, particularly to protect tenants in these circumstances. I will speak at more length about those provisions when we get to the detail stage. The Government's intention is to oppose clauses 5 to 7, and to move the amendments to which I have referred to clause 4 and so deal with some of the issues which Mr Moore has raised.

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