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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 637 ..

MR RUGENDYKE (continuing):

This amendment is about preserving security of tenure for tenants. I find it astounding that we have a provision which rules the tenant or small business out of the minimum five-year lease if they receive independent legal advice before entering into the lease. Receiving legal advice is not an adequate reason for excluding tenants from minimum five-year leases. What if the landlord forces the tenant to obtain a certificate of advice? This in effect robs the small business of the entitled five-year lease.

This is a clear-cut example of the imbalance of power that this government is trying to preserve. Landlords can hold small business to ransom in negotiations by making it mandatory to obtain a certificate. This is unfair, and I encourage members to remove this provision from the bill.

MR STEFANIAK (Minister for Education and Attorney-General) (5.51): The government is opposed to this amendment. It removes, probably in error, the capacity for parties to contract out for five years. They would be contracting out with independent legal advice, so we oppose the amendment.

MR HUMPHRIES (Chief Minister, Minister for Community Affairs and Treasurer) (5.52): I should explain why clause 104 is drafted as it is. It is clearly designed to ensure that tenants who are not aware of their legal entitlement under the legislation are protected in those circumstances. A tenant who enters into an arrangement unaware that they are entitled to a minimum five-year lease is able to come back and arrange for their entitlement under the legislation to be enforced at a later point.

Quite reasonably, the provisions here to deal with tenants' entitlements are not exercised at any time in any way. They are circumscribed in a particular way by clause 104. Not surprisingly, the clause says that a tenant is not entitled to take advantage of this right to take up a five-year lease if, before entering into the lease, they obtained independent legal advice-not just advice in general about their position but advice about the particular effect of the clause.

If a person has gone to get legal advice from a solicitor and been told that they have an entitlement or right to take up a five-year lease but decline, notwithstanding that, to enforce their right to a five-year lease, then it would be unreasonable to afford that tenant the protection which comes to those who are ignorant of their rights when they enter into that lease arrangement.

People are entitled to take decisions in the full knowledge of what they are doing, and we need to avoid the situation where we try to prevent people from making decisions in the full and harsh glare of a knowledge of the law. If they obtain advice independently about the effect of section 104, why should they not be able to say, "I know that I am entitled under section 104 to a five-year lease, but I do not want to take up that right"? Why should they not be able to say, "It suits me to have a three-year lease"? If they make that decision in light of the knowledge that they have that entitlement, it would be wrong to give them the power unilaterally to reopen that negotiation and say, "Sorry, I have now decided that I want the five-year lease. Yes, I know I was entitled to a five-year lease at the beginning. I was advised to that effect and I declined the advice. I have now changed my mind. I want to have the five-year lease."

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