Page 3636 - Week 09 - Tuesday, 23 August 2011

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The Tenants Union of the ACT raised a similar issue, and I note the Greens are proposing an amendment that makes an order of the ACAT a prerequisite to making the entry on the database. We believe it is reasonable in all the circumstances and to protect both the tenant and the lessor or agent that information held on the database is correct. Incorrect information held on the database could have serious consequences for any of the parties, even perhaps including the database operator. Therefore, we will be supporting the Greens’ amendment.

Thirdly, the scrutiny committee commented that the bill provides that a lessor, agent or database operator can charge a fee for providing a tenant with information held about them on the database. It says that the fee must not be “excessive” but gives no guidance as to how that might be measured and there is no means by which the tenant can challenge the fee. The government responded that prescribing a maximum fee would serve merely to set the fee actually charged. Requiring that a fee not be excessive leaves the way open for a tenant to challenge the fee in the ACAT, such that the ACAT would make a judgement as to its excessiveness based on the circumstances of the case. I concur with the government’s position on this matter too.

In my consultation on this bill, I received comment from the Tenants Union of the ACT. The union sent me a submission, which was also sent to the government and the Greens. The government responded to the Tenants Union and sent me a copy, and I thank the attorney for his assistance in that matter. The Tenants Union raised a number of matters. The first relates to the determination of whether a tenant owes the lessor more than the amount of the bond held. I have dealt with this issue already.

However, I also noted the government’s response, which, amongst other things, noted that it is open to the tenant to challenge any entry in the database with the ACAT. In this case, once the entry has been made, the horse has already bolted. The entry may be incorrect and the tenant’s reputation tarnished as a result. Putting the onus on the lessor to prove to the satisfaction of the ACAT that the tenant owes more than the bond provides more certainty for all parties.

Next, the Tenants Union raised an issue about the lack of clarity in the bill relating to how long an entry may remain on the database. The government’s response to the Tenants Union casts very little light on that lack of clarity. I note that the Greens are proposing an amendment to add an example to the relevant section—that is, section 97—to clarify this position. The Canberra Liberals will be supporting the Greens’ amendment.

The third matter raised by the Tenants Union asks the question: who has to comply with the model uniform provisions? Their concern is that the legislation could be interpreted that anyone can list a tenant on the database, but that the bill does not impose obligations on anyone—only on the lessor, the lessor’s agent or the database operator. The government argues that question away in a somewhat offhand manner, posing a range of probabilities about whether a listing might or might not be made about a tenant. The Greens are proposing an amendment that will require anyone who seeks to make an entry on the database to be subject to all the obligations of the act. As this is an amendment which seeks to remove any doubt, we will be supporting that amendment.

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