Page 3689 - Week 09 - Tuesday, 23 August 2011
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minimum standard which can be added to by each jurisdiction. That is quite clearly spelled out in those documents. We believe that, by adding a protection, this possibility was considered and approved by the model bill and its drafting officers and ministers, so we do not believe it is a problem there.
What, perhaps, goes more to the central issue and point of debate on this topic is the role of having ACAT involved in making this decision and listing tenants under this power. The government, in our discussions over the lunch break—and I appreciated those discussions with the departmental officials as well; it was very useful to have a discussion—has identified three key arguments against the amendment that we are putting forward. I would just like to touch on each of those.
The first is that it will be unworkable because it will require landlords and their agents to go to ACAT in order to get a tenant listed. My view, and the Greens’ view, is that landlords and their agents are already going to ACAT to get orders about the amount of money outstanding. Certainly, in the consultation we have undertaken with the property industry and property managers, our advice is that many landlords already go to ACAT to ensure that the decision and the orders received are enforceable and that they can be followed through. In that sense, it is already happening on a lot of occasions. That point is repeated in the attorney’s letter to the Tenants Union.
The second issue that the government raised was: “Well, we don’t need this power, or this approach, because the tenants have a right to correct inaccurate entries after they are made and therefore the amendment is unnecessary.” Again, it seems, on the face of it, not unreasonable that the tenants can correct an inaccurate entry, but we believe it is best to get the entry right before it is made on the database, with the benefit of an ACAT order, rather than relying on appeal mechanisms to correct an error later down the track. If an agent wants to enter information the onus should fall on them to prove the matter, instead of having the onus fall on the tenant to correct an inaccurate entry.
It is an issue of proper procedure and, really, a debate about where the onus should fall. If one thinks about the consequences of this, the consequences lie on the tenant. If there is a situation—and, unfortunately, it does happen—where there is bad blood between the parties, a landlord might, with a slight sense of retribution, pursue a matter in this way. It is clearly then unfair for that bad blood to play out for the tenant who may, through an ACAT process, be found to have acted appropriately, or at least their bond covered the amount of damage—it was not in excess. I think it really is a question of where does the onus lie and thinking about the harm—for want of a better word. Given that the harm mostly will fall upon the tenant, I think it is important that the entry be determined to be correct before it is made on the database.
The third argument was that to take this approach and require the involvement of ACAT at this point would be unworkable when a tenant does not leave a forwarding address and an ACAT order cannot be obtained—for example, when a tenant has done damage and then left the jurisdiction with no intent of being found—in order to cover the costs that they have been responsible for. That seemed, again, like an important point, but further research reveals that section 44 of the ACAT act gives the tribunal the power to proceed in the absence of a party where there have been efforts made to contact them. So in the situation envisaged by the government, the ACAT
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