Page 1567 - Week 06 - Thursday, 2 July 2020
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I am not sure exactly what is going to happen with these amendments, but I am not confident, at this stage, that negotiations about these amendments have been successful. In fact, I think it is the other way around. I have heard a number of reasons for this. At first I was told that ACAT already do mediation. You only get to do mediation with ACAT if you are at ACAT, which is pretty much, for most people, a lose situation already. I have been told there could be constitutional issues with mandating mediation. I must admit I find that unlikely, as we are copying the New South Wales government legislation. I imagine that the New South Wales government has considered any potential constitutional issues.
I am also told that there could be issues related to insurance. Again, I cannot see how participation in mediation could possibly impact insurers. I understand that there are some issues in terms of landlords’ insurance and reduction of rents. That is a related but different issue. I understand that the national cabinet is trying to work on that issue, but I point out that rent reduction and mediation are not the same. We were told that New South Wales had a hard cut-off of six weeks for their regulation and that the fact that we borrowed their wording makes our scheme somehow different. Our amendment expires at the same time as the other bits of the declaration, as seems appropriate, as it is COVID-19 related.
Lastly, we were told this might impact on good faith negotiations that have already been taking place between landlords and tenants. This seems like a serious stretch, given that landlords and tenants who have been participating in negotiation using the free government-funded service provided by the Conflict Resolution Service will not be affected one iota. Also, any landlords and tenants who have negotiated and reached a negotiated outcome, and are not going on to further eviction, will not be affected. Basically, if you can work out what to do you are allowed to do it; just do not evict people just because they have been affected by COVID-19. That is the basic point of my amendments, and it is what Legal Aid has talked about a lot in its very good submission to the COVID-19 committee.
I am aware, unfortunately, of a number of cases where a landlord or real estate agent has gone incommunicado since the beginning of the COVID emergency. It is precisely the tenants of these people that we are worried about. These are the people who might simply be evicted at the end of the moratorium. There may not be a lot of them but almost certainly those who are affected will be very negatively affected. My amendment does not propose binding arbitration. It will not stop ACAT from issuing a termination notice; it just ensures that the landlord and the tenant have to talk. It might facilitate a conversation that might prevent a family from losing their home. It might allow tenants to see the perspective of their landlord and realise that the landlord is not being unreasonable in their demands. Whatever happens at mediation, it is hard to see that having a conversation is going to hurt. So this amendment is basically implementing proposal 1 of the Legal Aid submission to the COVID committee.
While I started work on these two amendments well before seeing the Legal Aid submission, I am reassured that there are not major legal issues in requiring lessors to have good faith negotiations with tenants before going to the tribunal. Given that the
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