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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 648 ..

MR STEFANIAK (Minister for Education and Attorney-General) (8.06): Mr Speaker, the government will not be supporting Mr Rugendyke's amendments. If they are successful we will be moving some amendments to them. Again, I reiterate what I said before the dinner break-that these amendments would tip the balance within the bill which has been painstakingly achieved over that consultation period I mentioned.

Mr Speaker, the ACT's renewal rights which currently exist under the tenancy code and which are contained in clause 107 of the government's bill are already duplicated in South Australia in section 20J of their act. Importantly, however, the South Australian provisions do not contain the distinguishing feature of the ACT legislation that on a renewal the commencing rent cannot exceed the market rent.

I understand there might be support for Mr Rugendyke's amendments on the basis, supposedly, that they mirror the South Australian tenant preference provisions. Whilst there are some similarities between his amendments and the South Australian provisions, the South Australian legislation does not make provision in relation to market rent and if passed without amendment, unlike in South Australia, an existing tenant in the ACT would have the right to accept the offer that would otherwise have been accepted by the other tenant. Further, the existing tenant is able to amend the offer that would have been acceptable to a new tenant by challenging the rent through the Magistrates Court. It is proposed that an existing tenant will have a preferential right and yet, on the other hand, it is also proposed that the existing tenant will have a further right to challenge the rent, the subject of the offer, even if that same offer is acceptable to another tenant.

This fundamental inconsistency between renewal rights and preferential rights has been overlooked in the amendments before the Assembly. If passed, Mr Rugendyke's amendments should be limited to avoid confusion between the two processes that will be in the act. The scheme of Mr Rugendyke's amendments does not include key provisions dealing with implementation issues. The amendments do not provide any guidance at all as to what is meant by the concept of preferring the existing tenant.

Under the South Australian model a mechanism is provided which allows both parties to understand what is meant by the concept of preferring the existing tenant, and that is sections 20E (1) through to 20E (5). In South Australia these provisions specify the time periods within which the lessor must negotiate and provide notice to the existing tenant, the way in which an offer is to be made, and also what material is to be provided, the relevant time limits that an offer for renewal remains open, and requires the parties to negotiate in good faith.

Without a certain mechanism neither party will have the certainty of knowing what is envisaged by preferential rights. In effect, the Assembly members will be abandoning their legislative duty and obliging disputes to arise before the Magistrates Court so that the Magistrates Court can sort out the mess. I would hope that that is something that members would not like to see.

MR SPEAKER: Have you formally moved that, Mr Stefaniak?

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