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Legislative Assembly for the ACT: 1999 Week 3 Hansard (24 March) . . Page.. 742 ..

MR CORBELL (continuing):

I think the Government has not really addressed the issue of the potential loophole that this amendment creates. It is certainly our view that that outweighs the argument that the Government has put forward that it is too severe a penalty. It is a simple process to ensure that when you prepare the sale contract you include with it the energy rating. It is a very simple process. It is a very straightforward process. I do not see any really strong grounds as to why a failure to do that should simply be dealt with through this type of penalty, a cash penalty of this nature. The risk if you have this sort of amendment is that someone may very well get out of providing an energy rating at all, which is the whole intent of the legislation. The Labor Party is unable to support this amendment.

MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (12.15): Mr Speaker, I do not know how many members of the Assembly have been involved in conveyancing or have often been in the position of having to deal with conveyancing. Presumably those who are not lawyers have not done so on a regular basis. I spent some time in the business of conveyancing when I was a solicitor and I can say that I think members underestimate severely the impact of the provisions as they stand in the Act unless they are amended as the Minister has suggested. Mr Corbell describes the payment of a penalty in the sale price as a loophole. I do not think we could ever regard the payment of money by way of a penalty as a loophole. The payment of financial - - -

Ms Tucker: But the loophole is that it might not have to be paid. That is what we are saying.

MR HUMPHRIES: I would argue that the provision about making the contract void as in the existing agreement is equally a loophole in that sense. Unless the parties discover, or have pointed out to them, that the contract is without this particular clause in it and does not have the certificate or whatever attached to it, or have the indication in the contract of the energy rating of the premises, it has no effect.

This is most often going to arise, Mr Speaker, as members have pointed out, in connection with the circumstance where somebody probably has used, perhaps in the early stages of this legislation, a lawyer who does not do much conveyancing and has not caught up with the existing law on this area. Maybe he has not caught up with the new forms produced by the Law Society which set out the new requirements for energy rating, or, more likely, where people do their own conveyancing and are unaware of the provision that says that they need to have an energy rating in their contract. This will be a small number of cases, I concede, but it will happen, and we are debating today what happens in those small number of cases where people have not taken into account this requirement.

Now, what should be the appropriate penalty? As the proposal from Ms Tucker presents itself, the penalty is a very severe penalty. It is that the contracts become void. A person in a situation where they are arranging a sale of a house will suddenly find that their contract is actually void.

Ms Tucker: Which is already possible for other reasons.

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