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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 629 ..

MR STANHOPE (continuing):

no end. I should say to my colleagues that nothing is confidential: my daughter reports back to me faithfully what each of you buy for lunch. Some of you have the most outrageous scones-so beware. But, in addition to that, a bakery has just recently opened on the corner, next to the chemist. There is a bakery opposite to that. Also there is a bakery that has now moved outside as a result of renovations which the Queensland Investment Corp is making to extend its building in Adelaide Avenue.

Mr Rugendyke's argument-and I believe Ms Tucker's argument-is based on the number of shops. I could come along, have a look around and think, "There are four other bakeries within 15 metres of where I propose to establish a shop. It might be that my bakery will be a real hit but, then again, gee there is a bit of competition here. Perhaps I need to think seriously about whether this is where I should open this shop." The landlord, who is looking for tenants, might say, "Well, yeah, if you want to have a go. Look, I am not exactly being knocked over in the rush for people to take this particular premises, but if you want to open a fifth bakery within 15 metres of four other bakeries, I am happy to rent you the shop. It is your decision."

It has been suggested here that if a business does not go well, the landlord did not control the tenancy so therefore it is the landlord's responsibility. I think that is a fairly long bow to draw. As the Attorney has suggested, there are a range of other avenues open to tenants that have been subjected to inappropriate conduct. Is it seriously being suggested in those circumstances that the landlord is acting unconscionably? If that is what is being suggested, it does not fit within my definition of unconscionable behaviour.

I have to say that the bakery example that underpins Mr Rugendyke's support for this amendment does not fall within my understanding of unconscionable conduct on the part of a landlord of rented premises. Somebody comes in with their eyes open and says, "Look, I see that there are four other bakeries but I will have a go. I will open a fifth." Why is that unconscionable conduct on the part of the landlord? The landlord might sit back and think, "Well, gee, I think you're going to do it tough. I think you're going to have strife." But is it for the landlord to counsel the tenant and say, "Look, I really don't think you are going to do well here"?

It is being suggested by this amendment that the tenant who opens the fifth shop and who does not fit in well-or even one of the other tenants with an established business who perhaps is not surviving-is automatically entitled to compensation. But is that unconscionable? It does not fit very neatly within my understanding of unconscionable. In any case, if it is unconscionable conduct it can be pursued independently. A tenant may believe that in those circumstances they are being forced out or squeezed out by a landlord who simply is simply filling premises with a like business. If it is unconscionable conduct then it can be pursued independently. So why provide this automatic right of compensation, this automatic compensation in circumstances where unconscionability has or has not been tested?

I can see the force of the argument that some people acted in good faith on the basis that when they came there were only two or three bakeries and they never expected there to be any more. If these people think there has been unconscionable conduct, they can pursue the matter. There is real protection for tenants in those circumstances.

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