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Legislative Assembly for the ACT: 2004 Week 09 Hansard (Tuesday, 17 August 2004) . . Page.. 3782 ..

In the years of operation of the act, issues have been identified through experience and through tribunal cases. A number of the amendments are based on this experience. Lessons about the processes have also been developed into changes. Some of the amendments update language—such as changing “prescribed term” to “standard residential tenancy term”, which is clearer because its meaning relates more precisely to this act.

I will not cover all of the amendments but would like to briefly mention some points. The bill will introduce an additional ground for protection of tenants against retaliation by landlords with the new ground of, “or had taken some other reasonable action to secure or enforce his or her right as a tenant”. This protection is very important, as many tenants are reluctant to push their legal rights for fear of losing the tenancy altogether. In a tight market this fear is made more potent. While the legal protections may not entirely alleviate these fears, this broader term should be useful in removing any doubt about exactly what actions are protected.

There is what I suppose could be regarded as a balancing amendment, where the lessor is protected against damage, injury or intention to damage or injure. Where the lessor is a corporation this provision will now also apply to the corporation. Clause 21 puts into law an interpretation of the general right to enjoyment which was tested in the Supreme Court in the case of Anthony Worral v Commissioner for Housing in 2001. The arguments and precedents of the case are explained in the explanatory statement but the key point, I think, is that the case affirms as follows:

It may be incumbent upon a lessor to exercise contractual rights over third parties in order to prevent a breach of quiet enjoyment.

The particular case, I believe, was to do with work being carried out in public housing and the hours of that work. The details I have may not be correct, but I think this shows the importance of having a court system to test these principles, the importance of using case law and the importance of having these kinds of reasoned judgments to enable us to, in turn, update our statutes. The importance of people of little financial means having access to courts to air their grievances is also illustrated here.

Skipping ahead along the lines of access to the court system, there is an amendment that requires the Residential Tenancy Tribunal to make its judgments available in writing soon after hearings are concluded. Although this is not as extensive as the full reasoning, it ensures that a recorded body of case law will be built up on cases which you could say advance the interests of tenants, as well as those that affect the interests of lessors. There has previously been some imbalance. This also ensures, as the ES points out, that there is a more detailed body of case law to refer to. On that basis, some cases may not require recourse to the tribunal.

One of the biggest steps forward in this bill is the creation of a system of rules for residential situations that do not fit the standard residential tenancy agreement mould. Boarders, lodgers, caravan park tenants and residents of many forms of supported accommodation are covered by this new section.

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