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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 570 ..

MS TUCKER (continuing):

Through the operations of the Tenancy Tribunal, the difference between commercial and retail leases has now been clearly established. The inclusion of premises identified in schedule 1 and the addition of the rather ambiguous clause 7 (4) do not create certainty; rather, they open up a limitless stream of conflicts in court where property owners and managers will seek to define a whole range of businesses that until now have had the protection of the act under the definition "commercial". I would like to remind members that my amendments would nonetheless leave the existing definitions of "commercial" and "retail" intact and so maintain the existing clarity and certainty.

MR STEFANIAK (Minister for Education and Attorney-General) (11.45): I speak to Ms Tucker's amendment 1--and amendment 2; they both relate to clause 7--to remove the schedule of commercial premises from the act. The government opposes the amendments. The act draws a distinction between commercial and retail premises, and these are defined in clause 7 (5). The act only applies to small commercial premises--that is, of less than 300 square metres--or retail premises of less than 1,000 square metres, not leased by a publicly listed company.

This reflects a distinction in the existing act and code, a separation which has now existed for many years and which has been factored into commercial decisions. The Greens' amendments seek to remove a schedule included in the act that identifies a number of premises as commercial premises. Different stakeholders have adopted different positions on the desirability or otherwise of the approach taken by the bill. Originally, the Law Society supported the inclusion of a list of this nature. Whilst this support has dwindled, it is understood that the society still supports the policy objective of bringing certainty to this area.

The government presses its amendments to the bill on the basis that they remove uncertainty. The list in the schedule is based on the ordinary distinctions made in town planning in this and other jurisdictions. The effect of removing the schedule is simple: it will expose all of those in the grey area to uncertainty; it will mean that these matters will be litigated on a case-by-case basis.

The government opposes amendments 1 and 2 relating to clause 7, which remove the clear distinction between retail and commercial tenancies. The distinction was included on the advice of the expert committee, which argued that, if the schedule is retained, consideration be given to ensuring that anything contained in the schedule is removed from the definition of "retail premises". The effect of removing this provision is to further muddy the waters.

MR KAINE (11.47): I have some difficulty with schedule 1 as a matter of principle because it in no way claims to be a definitive list of what constitutes a commercial premises. They are merely examples and in some cases not even clear examples. Take item 5:

Who and what are they? Item 9, a list of amusement facilities, ends with "... and other indoor entertainment facilities". Such as? Item 12 reads:

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