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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 639 ..
MS TUCKER (continuing):
This amendment deletes the provision that a tenant can lose the right to a five-year term if a lawyer has merely advised them of the effect of section 104. At least the protection in the current code is that such advice needs to be offered in the form of a solicitor's certificate. Under the government's bill, however, any form of lawyer's advice would be sufficient. I think it is fair to say that tenants ought to get independent advice, but without making any more formal demand on the solicitor and his client or her client the tenant can inadvertently be trapped into surrendering the right to an extension of lease.
Even with this amendment, it will still be possible for a lessor to prevail on a tenant to surrender the right to a five-year term. This amendment will provide some protection in requiring a tenant to get a solicitor's certificate, with the detail and formality that process ensures, before surrendering the right to five years. There will be an issue of some additional cost, but on balance the Greens are of the view that this detail and formality are of sufficient importance to outweigh the cost involved.
MR STEFANIAK (Minister for Education and Attorney-General) (6.02): This amendment calls for the removal of a deeming provision about when a person is independently advised. It would mandate lawyers' certificates in every case. This would increase the costs to tenants. I would suggest that the Greens might have been poorly advised. One has to ask in whose interest the amendment is being made. It does not seem to be an amendment that would benefit tenants but more one that would benefit tenants' lawyers, so the government opposes it.
MR STANHOPE (Leader of the Opposition) (6.03): I worry that there is some force to the argument that the Attorney makes in his response. I have some sympathy with the position Ms Tucker is putting-namely, that in every circumstance, for the sake of certainty, a written statement should be provided. I understand your argument to be that in every single case, in the absence of evidence to the contrary, a written statement should be provided. Clause 104 states:
For this section-
(a) a tenant is taken to have been independently advised about the effect of this section if, before entering into the lease, the tenant was so advised by a lawyer who was not acting for, or nominated by, the lessor ...
That seems pretty straightforward to me. If you have a lawyer and you take advice, then you have been independently advised. The clause continues:
and
(b) in the absence of evidence to the contrary, a written statement by a lawyer certifying that the lawyer has, at the request of the tenant, explained the effect of this section to the tenant and, in particular, that the giving of the certificate will result in the tenant being unable to use this section to increase the total term of the lease to 5 years, is conclusive evidence of the facts in the statement.
I am struggling to understand how the deletion of paragraph (a) benefits the tenant. If you consulted a lawyer, there should be a presumption that you listened to his advice and chose not to take it, without the need for a written statement conveying information in relation to the potential to move to a five-year lease. With great respect
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