RESIDENTIAL TENANCIES (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2013.)

The Hon. S.G. WADE (15:28): I rise to speak on behalf of the Liberal opposition in relation to the Residential Tenancies (Miscellaneous) Amendment Bill and, in doing so, indicate our support for the bill. Housing is one of the most basic needs of citizens. Having a stable home in which to build a life is one of the most important foundations of success in work earnings, education, maintaining positive relationships and the development of community spirit.

However, ensuring this foundation is fair, encouraged and sustainable is a delicate matter. The kind of arrangements dealt with by this bill quite clearly affect many of South Australia's most vulnerable. Tenants traditionally have been students, the elderly, those from lower incomes and those in transition. As urban lands become scarce and therefore more expensive we may well see renting become more common.

The ratio of average earnings to average house price has been increasing in recent years, meaning that owning a home in today's market is becoming more expensive proportionately than in previous decades. In contrast to the average tenant, landlords are often much more financially secure and independent. On the one hand they seek to be good custodians of their money; on the other hand they are providing a valuable social good.

Any market is susceptible to failure or vulnerable to malpractice. In a market for such an important social good as housing, it is in the public interest that fairness be promoted by an appropriate regulatory framework. As stakeholders have raised with us, there are few instances in life where such a power imbalance exists within a relationship between two parties to a contract. Because of this, there can be tension between landlord and tenant as each seeks to get the best deal from the arrangement. However, for any tenancy to be sustainable, it needs to be a mutually beneficial arrangement. The tenant needs to have the benefits of a stable home to base their life; the landlord needs to receive fair compensation for the use of their property, which will be at least sufficient to provide for the maintenance of that property.

For the most part, the opposition considers that this bill appears to get the balance right. The bill makes a number of changes, many of which provide for greater flexibility in the arrangements between landlords and tenants. This includes the new right of landlords to ask for an additional bond if a tenant intends to keep pets at the property; the restriction of property inspection hours; the right of tenants to seek compensation for losses incurred from the failure of a landlord to repair, or to take reasonable steps to repair, after notification by the tenant; and greater recordkeeping requirements.

The opposition has consulted widely with a number of stakeholders representing different parts of the sector, and we appreciate the wide-ranging advice we have received. A number of submissions raised the issue of balance between landlords and tenants and called for increased rights for one party or another. Other submissions raised concerns about perceived discrimination in the legislation and about the listing of persons on the tenant blacklist. Other concerns related to the enforcement of rights under the act through the tribunal and difficulties in the practicality of complying with measures.

The opposition has listened to these concerns and, as a result, we will be filing a number of amendments. I understand that the Hon. Mark Parnell and other members may also be filing amendments. It is my view that, rather than detail our concerns at this stage, it would be best to file the amendments and explain our position in relation to each amendment. With those words, I reiterate that the opposition will be supporting the bill but will seek to have it improved through amendment.

The Hon. G.A. KANDELAARS (15:31): I rise to speak on the Residential Tenancies (Miscellaneous) Amendment Bill 2012. Access to secure, appropriate and affordable housing is a vital element in meeting a number of the government's seven strategic priorities. These priorities include providing an affordable place to live, safe communities and healthy neighbourhoods, as well as creating a vibrant city.

The bill specifically seeks to provide a series of new protections for renters. It provides an increased level of certainty and control for anybody who rents a home in South Australia at all stages of any agreement they enter into. From the time they begin a tenancy, a standard form written tenancy agreement will be introduced, which will provide parties with an understanding of their rights and obligations.

The bill also provides protection for the tenant while they pay rent. Rent under a fixed-term tenancy will not be able to be increased unless at least 12 months have passed since the rent for the property was fixed or last increased. Currently, rent can be increased every six months. Also, landlords will need to allow tenants to pay their rent by at least one means that is not cash or the use of a rent collection agency. This provides greater flexibility for the tenant and prevents them from being forced to pay through a collection agency, the service of which the tenant pays for. If a tenant provides a written request for a copy of a rent record, the landlord must produce one within seven days, limiting the chance of disagreements over rent payment.

Tenants' requirements are now better taken into account. Landlords will now be required to attempt to negotiate an entry time with tenants if they wish to be present during the entry. Currently, a landlord is entitled to enter a property, provided they have given valid notice, regardless of the tenant's wishes or commitments. Inspections and work on the property arranged by the landlord will only be allowed to occur at certain times, unless the tenant agrees otherwise, protecting the sanctity of the tenant's home and providing them with greater certainty.

In regards to ensuring the property is well maintained, a landlord will not be able to unreasonably withhold consent for an alteration or addition to the premises by the tenant. Landlords will be responsible for compensating tenants for their reasonable losses resulting from a failure to carry out repairs. Providing greater certainty while living in the property, landlords will be required to give tenants written notice of their intention to sell the property within 14 days of entering into a sales agency agreement or determining to make the property available for inspection. If the agreement needs to be terminated, the tenant will be able to terminate the tenancy agreement if, within two months after the start of the agreement, the landlord enters into a contract for sale of the property; and, the landlord did not, before the agreement was entered into, advise the tenant that they intended to advertise the property for sale or had entered into a sales agency agreement.

Parties to a fixed-term tenancy agreement will be required to give a notice of termination within 28 days of the tenancy, otherwise the tenancy continues on a periodic basis. Under this bill, people who rent a property in South Australia will be able to feel more secure in their rights, the agreements they enter into and the property they rent.

While doing all of this, the bill provides benefits to investors and the industry. The bill also provides protections for landlords, some of which include that landlords will be able to recover their reasonable expenses where the tenant is at fault, for example, replacement of rent books or fees associated with dishonoured tenant cheques. Tenants will be responsible for compensating landlords for ancillary property loss, for example, keys, and remote controls for doors and gates. Landlords who have properly served tenants with a form 2 for rent arrears twice in 12 months will be able to apply directly to the tribunal for vacant possession if the tenant is in arrears for a third time.

Improvements to the Residential Tenancies Tribunal process that will assist all elements of the industry include: the jurisdictional limit of the tribunal will be raised from $10,000 to $40,000, meaning that more matters can be settled through the tribunal rather than going to court; the tribunal will be able to determine an application without hearing based on documentation provided by the parties; and, allowing for a more smoothly-run tribunal with a broader scope.

Given the significant improvements this bill provides to tenancy agreements, the rights of tenants and landlords, as well as the Residential Tenancies Tribunal, I commend the bill to all members.

The Hon. M. PARNELL (15:38): The Greens support the bill. We believe it contains many worthwhile reforms and, whilst I do not propose to go through the list of 80 reforms, I point out that some that have had universal support across the whole spectrum of this debate—landlords' advocates and tenants' advocates—are things like: limiting the right of inspection to certain times of the day and certain days of the week; reform of the regime for abandoned goods; and, provisions providing for more notice to tenants if a property is being put on the market or to be sold.

A whole lot of issues generally have not been contentious and will be supported, I think, by everyone. As is the nature of these debates, my focus will be on the things we do not like in the bill and on the missed opportunities for further reform that can be addressed as we go through the committee stage of this debate. The Greens will have some amendments, and I will not go through them in detail now (I will do that in committee), but I will touch on some of them as I go through my remarks.

Before I start, I do want to put on the record, by way of declaration, a number of past interests that I have in this topic, none of which amounts to a conflict of interest but, since both my wife and I have worked in this field, I want to put these on the record now. Firstly, I am a former honorary convener of the South-West Tenants Legal Advisory Service which was a free legal service advising residential tenants in the regional city of Warrnambool in western Victoria in the mid-1980s.

In relation to my wife, I acknowledge that she was a member of the Residential Tenancies Tribunal here in South Australia for 10 years in the 1990s and the 2000s and she had previously been employed in this sector in Victoria. So, on the subject of residential tenancies, I bring around 30 years of both personal and professional experience in this matter, and I guess I am not Robinson Crusoe in having been a tenant myself; most of us have at some stage.

In terms of what we are talking about in relation to this legislation, I am grateful to Shelter SA and to Dr Alice Clark for having pulled together a number of statistics which I think help frame this debate. The first thing to note is that around 25 per cent of private dwellings are rented and that means that a similar proportion of people—it is around 26 per cent of South Australians—live in rented accommodation. The bulk of these people, about 19 per cent, are in the private rental sector.

These figures do change a little bit over time because there have been some changes in emphasis, mainly driven by government policy. For example, up until the 1980s, there was a significant shift of people into public housing but after the eighties, and through the nineties and the noughties, there was a shift from public housing to private rental housing which was driven in part by the sell-off of public housing but more particularly by the shifting of federal funding from building houses for disadvantaged people to rent assistance.

Australia wide, according to a report by the Australian Housing and Urban Research Institute, more than one million low-income households that comprise the lowest two quintiles of household income are renters and twice as many lower income households live in private rental compared to public housing. So, whilst residential tenancies legislation only affects about a quarter of all South Australians, it plays a significant role in the lives of low-income households and low-income South Australians.

It is probably also fair to say that, traditionally, renting your accommodation was regarded as a transition to a more desirable form of tenure, namely, home ownership, but it is probably fair to say now that, whilst that still applies to many people, there is now more of a theme that renting is a residual tenure of last resort, to use the words of Shelter SA. How tenancy is perceived in the community has a strong bearing on the legislative framework and how the balance between the rights and responsibilities of landlords and tenants is struck, and I think everyone who speaks to this debate will refer to the balance—the rights and responsibilities of landlords and tenants.

I note that, certainly in this country, we do not have a culture of very long-term residential tenancy, long-term rentals. In some European countries, as people are aware, such arrangements can go for decades and they can even transcend generations, with the same family renting the same home over a very long period of time. We do not have that culture in this country and I think our legislation reflects that in the balance between landlords' and tenants' rights. It is, I think, reasonable to say that the balance is struck more in favour of landlords than it would be in countries where the culture is one of long-term renting by all sectors of the community, not just low-income families.

The balance between the rights and responsibilities of landlords and tenants can be looked at in a number of ways. At one level we are talking about someone's income-producing asset—or, in reality, their negatively-geared investment—and we are comparing that to the same property being someone else's family home. Whenever there is a debate around shifting the balance between landlords and tenants, it is always said that, if you get the balance wrong in terms of giving tenants too many rights, then that will have negative impacts in relation to the supply of housing, in particular the supply of housing for low income people. I am grateful, again, to Shelter SA for having addressed this in one of their submissions to this law reform process, and I will read a few sentences from the submission. Shelter SA refer to a report by Wait, and say:

Wait writes that whenever tenant advocates focus on the need to offer greater protection to tenants through tenancy legislation, there is a cry from industry that it will lead to disinvestment. Concerns about landlord disincentives are not supported by research that indicates how taxation incentives have more influence on landlord decisions to invest in properties for lease rather than tenancy legislation.

They go on to say:

While residential tenancies legislation may be perceived as an impediment to control of their investment by some investors, data suggests that there is no discernible effect on the supply of private rental housing from the introduction of reforms to tenancy legislation.

What that means is that members here need to be very careful whenever a measure is put forward that might be seen to give tenants greater rights, and members need to be very careful about getting on a bandwagon that is not supported by evidence and assuming that that will mean that private landlords will abandon the sector. There is no evidence that that happens.

In terms of tenure, the role of the state has been one of consumer protection to make sure that tenants have a right to quiet enjoyment. In other words, the role of legislation is to recognise that, whilst a property might be owned by someone else, the tenant has a right to live in that property with minimal interference, provided they meet their obligations in terms of payment of rent and keeping the property in good order.

So, freedom of contract is still the overriding consideration when it comes to the key elements of the residential tenancies contract, that is, the term of the lease and the rent that is payable, but there are other aspects that are regulated. One key issue is the notice period for ending periodic tenancies. Fixed-term tenancies are fairly straightforward. If you have rented a house for a year, you have got it for a year, but with periodic tenancies, whether it is a fixed-term tenancy that has, by the effluxion of time, morphed into a periodic tenancy, or whether the arrangement was always a month-by-month or a week-by-week proposition, there are statutory protections for both the landlord and the tenant, and the law recognises that people's circumstances change.

On the landlord side there may be a desire to sell the property, there may be a desire to undertake extensive renovations, or for the landlord to move in themselves or have a family member move in, and the law recognises that these circumstances should be able to be relied upon to end a tenancy provided that sufficient notice to the tenant has been given, and in those cases I have described, that is two months.

But there is also a provision that a landlord can enter a tenancy agreement and evict a tenant for no reason whatsoever provided they give three months' notice. In other words, if they do not like you, they can get rid of you, and the landlord is under no obligation to justify their action. Members will know what that means in practice, that tenants who request repairs or who dispute unreasonable landlord demands can be evicted, and proving that it was retaliatory or unlawful is almost impossible.

I would say that of all the provisions of the act that require reform, getting rid of no cause evictions would be the greatest reform that this parliament could make. Having that provision in the legislation is the clearest indication that the tenant is a second-class citizen whose desires will be subservient to those of the property owner. I refer to the submission of Adjunct Associate Professor Michele Slatter, who has also called for section 83 of the Residential Tenancies Act to be reformed. She says:

A strong case may be mounted that this provision in the context of the Act breaches basic human rights. The Tribunal has no overriding discretion, as is found in overseas legislation. This means that [section] 83 constitutes an occasion of arbitrary eviction...It's time that [section] 83 was repealed.

Members might think that is sounding pretty tough and pretty radical, but what you have to remember is that no-one is forcing a landlord to keep a rental property as a rental property for ever and a day. If the owner wants to sell it, if the owner wants to move in, if the owner wants to renovate it, or if the owner wants to demolish it, all of those are covered in the legislation. What we do need to reform is getting rid of no-cause evictions.

In relation to disputes between landlords and tenants, the situation in South Australia is that we have a Residential Tenancies Tribunal, and that tribunal is overwhelmingly funded—it is paid for—by tenants. The main source of funding for the Residential Tenancies Tribunal is tenants; it is tenants' bond money that has been lodged with the department on deposit, and the interest on those funds pays for the tribunal.

So the tenants pay for it, but who uses the tribunal? It is available to both landlords and tenants but, in practice, 75 per cent of the applications are by landlords, and the bulk of those applications are to evict tenants. What we have is a dispute resolution mechanism funded by some of the lowest income earners in the state to provide a service that is used by some of the wealthiest people in the state to evict them; that is just wrong.

That is a very poor system, and this bill seeks to compound that situation in a number of measures, which we will get to in committee. One of the things that I think would be a worthwhile reform—it will not be part of our amendments; it is a broader issue—is that, if the tenants were credited with the interest on their money that is being held in this account, there would be no need for landlords to seek further bonds once the value of the original bond has depreciated as a result of inflation.

A bond that represents four weeks' rent now will not represent four weeks' rent in 10 years' time, and so we have a system where the landlord can go back and say, 'You don't have four weeks' rent in the bond account anymore; you've only got two,' and the landlord can ask for more money. That would not be the case if the tenants were credited with the interest on their bonds.

I think it also invites us to revisit a decision the government made some time ago, and that is to charge people an application fee for applying to the Residential Tenancies Tribunal. It might not be a lot—I think it is about $37.50, from memory—but I think there is a case to be made that, given that the tenants are already paying for that service, they should not have to pay that extra levy as well.

One section of the Residential Tenancies Act that features a great deal on talkback radio, A Current Affair and Today Tonight is the section that deals with the tenant from hell—section 90. This section allows neighbours to get together and seek the eviction of a tenant as a result of unacceptable behaviour.

It is quite a remarkable provision when you think about it, because I can think of almost no other area of contract law in our country where third parties are allowed to interfere with a contract between two other parties. In fact, I will put a question on notice: can the minister outline any other area of contract law in this country where third parties have the right to interfere with privity of contract?

It is an unusual position, and therefore I think it is probably unique, but that is not to say that the harm that it seeks to address is not real. All of us are familiar with stories of appalling situations out there in the suburbs where people are running riot and are making their neighbours' lives an absolute misery. The question for us is: how do you deal with that sort of behaviour?

Much of that behaviour is criminal and needs to be dealt with through the criminal justice system, but the unfairness of allowing neighbours to get together to evict a tenant is that the same provision does not work in reverse. In other words, if the person who is causing the unacceptable behaviour in the community is the freehold owner of the property, then there is no capacity for anyone else in the community, at any stage, to seek for their removal.

People might have a prejudiced attitude and say, 'Well, bad behaviour only comes from tenants.' Well, of course it does not. I imagine most of the bikie fortresses and headquarters in our suburbs are probably owned freehold, probably paid for by cash, no doubt, knowing some of the activities these people get up to. My recollection is that Martin Bryant—who is probably never to be released from Risdon gaol—was a freehold property owner. There is all manner of people who own properties who have the capacity to behave very badly in the community, but no-one is allowed to do anything about that.

What would be really courageous of the government would be to introduce a neighbour from hell provision that treated badly behaved tenants exactly the same as badly behaved freehold owners. But certainly the government is proposing in this legislation to increase the range of people who can seek to intervene in a contract and to have a tenant evicted, and I do not think that that is the right direction to be going in.

One issue that is controversial in the community is the issue of pets in residential premises and the idea that a landlord can charge an additional bond—an additional security—for keeping a pet. The section, as worded in this amendment, is not at all clear. It talks about the keeping of animals, and it would seem to me that a person keeping a St Bernard dog is in the same position as a person with a goldfish in a bowl. Both of them are animals and for both of them, if they are being kept at the residential premises at the request of the tenant, the landlord is entitled to charge an extra week's rent by way of security bond.

The Hon. K.L. Vincent interjecting:

The Hon. M. PARNELL: The Hon. Kelly Vincent interjects in relation to goldfish, but it could be a lizard in a tank, it could be any kind of pet that causes either no or minimal risk to the property. So the approach that has been taken in various jurisdictions differs. Certainly in most of the UK and in America pet bonds are common. The RSPCA here in Australia has studied this area and they have shown that up to 30 per cent of surrendered animals are due to people moving house and moving into properties where pets are not allowed. The RSPCA has supported pet bonds in the past.

There are various other organisations, such as the Australian Companion Animal Council, that have not opposed pet bonds. Other groups have been more supportive. Certainly in the veterinary community there has been support for it, but in other areas they have been strongly opposed; for example, the Tenants Union of NSW strongly opposes pet bonds. They say it is discriminatory and they say, 'Why shouldn't we have children's bonds or mother-in-law bonds' and ask the question about whether pets are necessarily more destructive than children in rental properties.

I know we are here legislating and we need to draw the line somewhere, but that is making a reasonable point. We are going to be debating the ability to discriminate against children. But certainly when it comes to pets, we know that pets are important to many people, we know they are good for the mental health of many people and we do need to get the balance right.

In Western Australia they have a more nuanced approach. They focus on the real action which is cats and dogs; it is not goldfish. They focus on cats and dogs and they focus on that extra week of bond money being purely for fumigation or cleaning of premises that relates to the keeping of the pet. In other words, not just a bit of extra bond for some extraneous purpose.

In terms of other issues that we will be debating in more detail in committee, there is the question of whether a person, either a landlord or tenant, wants to go back to the tribunal for a second go, if you like, to seek a vary or set aside order, perhaps because they were not in attendance at the first hearing for whatever reason, and what should that window of opportunity be? The government is proposing to reduce it to two weeks: the Community Housing Council, for example, say that keeping it at three months actually can have a great deal of benefit for their vulnerable tenants. So that is, if you like, a landlord perspective saying: keep more flexibility and give a longer window of opportunity.

I have referred to no-cause evictions. Certainly the Greens have an amendment on that topic. With regard to the collection of additional bond money part way through a tenancy, as I have said, if tenants could keep the real value of their bond by having interest credited to it, there would be no need for that provision.

In relation to discrimination against children, I think that will be an interesting debate because, at present, it is unlawful to discriminate against children in residential tenancy accommodation, with a couple of exceptions. One exception is if you are living in the same house yourself, and people might think that is fair enough. If you are renting your back room, maybe you should be able to say, 'I don't want children.' But what if it is next door? What if it is an adjacent premises?

To what extent should landlords be able to try to socially engineer the demographic of their neighbourhood by actively discriminating against children in an adjoining property? You can see the situation where a landlord owns the property one side but not the other side, so they can keep children out of one side but they have no ability to keep them out of the other side because they do not own that, and they certainly cannot stop someone else moving in there with children. I think that is an issue we do need to explore.

Of the last two issues I want to raise, one has become a problem interstate, and that relates to the rollout of the National Broadband Network. What they found in Victoria is that the take-up was lowest in those areas that had a higher proportion of renters. The main reason for that was how difficult it was to get all the landlords to agree to sign the forms for the free NBN connection to be put through to their house. Most people would think you would have to have rocks in your head not to agree to have the fibre optic cable and the broadband connected for free to your house, yet it has been a real sticking point interstate. So the Greens are proposing that we add a provision which, basically, says that it is a tenant's right to have access to this infrastructure and the landlord should not unreasonably withhold consent.

The final point I would make is in relation to the increase in jurisdiction of the tribunal and the tenure of members appointed to that tribunal. What we are looking at here is a forum that exercises judicial or, if you like, quasi-judicial functions. They are going to have jurisdiction up to $40,000, yet they remain in their position, effectively, at the whim of the attorney-general of the day, with no formal process of either appointment or reappointment. The Greens' view is that, if we are going to give people quasi-judicial or judicial functions that provide for the exercise of powers that create rights and responsibilities, then we need to guarantee that the people who exercise that power are free from arbitrary dismissal or, in this case, non-reappointment after a fixed term period has expired.

That is a range of the issues that the Greens want to explore in the committee stage. As I have said, whilst it might all seem a very negative contribution, overwhelmingly the provisions of this bill are supported, and we look forward to its passage through committee.

The Hon. D.G.E. HOOD (16:03): Family First rises—I think it makes it unanimous, now—to indicate our support for this bill as well. There are a number of useful amendments to this bill which seem to have widespread support across the chamber, and we add our voice to that support. However, there are a number of concerns that Family First has with the bill. They are not what I would say barriers to our support for the bill but we would like to see them amended, if that is possible and appropriate.

I indicate that some of the issues raised by my colleagues who have spoken on this bill prior to me will, possibly, subject to the detail, enjoy Family First support as well. Those issues have tended to concentrate on the issues affecting tenants and, for that reason, I will not focus on that as much in my contribution today: I will focus more on the issues that affect landlords as such. However, we are sympathetic to the issues that have been raised affecting tenants, and will look upon them favourably when we get to the committee stage of this debate.

This bill contains a significant number of improvements and adjustments to the laws governing residential tenancies, as we know in this place. I approach these issues on the basis that the law should strike a fair balance. I think that the Hon. Mr Parnell said that all of us would say that, and he is quite right, between the rights of landlords and tenants. If, for example, the balance favours landlords, then hardship for tenants can result. If, on the other hand, the balance favours the tenants, this would have the effect of discouraging homeowners from offering their houses for rent in some cases. That could result in a shortage of houses on the rental market which could lead to higher rents in some cases.

My view is that, from an overall perspective, these amendments strike a fair balance and, as I said, Family First will support this bill. I do not intend to give a summary of the provisions in the bill, even though I have given them consideration; however, I intend to refer to several issues that my study of the provisions has raised. I put these forward by way of suggestions for members of this house to consider; they are not really matters that are in any way political in nature and they are matters that I think would not prevent me from supporting the bill but nonetheless require consideration of members.

The first matter concerns clause 22 of the bill which amends section 48 of the act. The heading is 'Information to be provided by landlords to tenants'. The clause provides that a landlord must take reasonable steps to ensure that a tenant is given manufacturers' manuals or written or oral instructions about the operation of any domestic facility requiring instructions. As I understand the term 'domestic facility', it refers to things such as ovens, heaters, dishwashers and the like that would be contained in a typical rental property.

The issue that concerns me is that if a landlord fails to comply with this requirement, he or she commits a criminal offence by failing to provide a manual and would be subject to prosecution and a fine of up to $1,250. The authorities also have the option of an expiation fee of $210 but they may or may not choose to utilise this option.

The words 'take reasonable steps' are vague and difficult to define. Many houses offered for rent are old and have older appliances in them. My expectation is that in many cases the owner will have lost the manual for the oven, for example, or perhaps it will have been lost by a previous tenant or perhaps the owner of the property. Perhaps the landlord never possessed the manual for the particular item (the oven or whatever it may be) installed in the house.

So, the question is this: is the landlord obliged by this provision to seek out a further copy of the manual from the manufacturer? In many cases, old instruction manuals would be obtainable but with some difficulty and in some cases, of course, they simply will not be obtainable. It seems to me that under this provision, every landlord will be obliged to make inquiries as to whether every lost manual can be replaced for every item in every house that they may or may not own and to take all appropriate steps to obtain a replacement where possible. Some manuals are available on the internet, and that is not too difficult to find, but many are not. Presumably those that are on the internet could be accessed just as easily by the tenant as the landlord.

It is my view that if a landlord has lost the manual for an old oven, whether through their own fault or that of a previous tenant or the fact that they never received it in the first place, and does not seek a replacement from the manufacturer, such failure should not result in a landlord being prosecuted and gaining a criminal record possibly, as I read the bill, or even having to pay an expiation fee. It is simply over the top.

I acknowledge that a good landlord should provide the manuals and this is good practice; I am not saying that it is not. Indeed, I expect that most would do so in the hope that this would result in the item being looked after properly. I do not see that the creation of a criminal offence is appropriate here. For that reason, I would prefer to see the proposed section 48(2) deleted from the bill.

Another provision concerning the same issue is clause 41 which enacts subsection 69(3a). This provides that if a tenant unintentionally causes damage to the premises or ancillary property as a result of the use of a domestic facility requiring instruction (the oven, for example), the landlord is not entitled to compensation unless he or she has provided the instruction manual.

To illustrate the effect of this, consider a tenant using an oven where the instruction manual has not been provided. The tenant may be lifting a heavy cooking pot, for example, into the oven and may drop it, breaking the glass door of the oven. Even though the lack of the manual was in no way the cause of the damage, the landlord loses his or her right to recover any damage under this provision because of his or her failure to provide the manual. This just seems plainly silly. That is an inappropriate result. In my opinion, it would be best to leave such situations to the common law to sort out because we cannot legislate for every single eventuality. Far reaching and inflexible provisions such as this should not be enacted. I would prefer to see the proposed subsection 69(3a) deleted.

A different problem arises under clause 40, which amends section 68. An example is if a dishwasher does not work when a house is offered for rent. A tenant may specifically agree that the dishwasher is not required for their own purposes. The rent may possibly be discounted by, say, $25 per week, or something in that order, specifically for that reason and an agreement reached between the tenant and landlord—both parties are happy.

Under the existing law, and also under the bill, the tenant may still require the landlord to repair the dishwasher. This is because the obligation to repair is a statutory obligation that applies regardless of any agreement between the two parties. I see this as inappropriate. Why should the tenant not be able to get cheaper rent if they do not need that particular item repaired? A proviso should be added to the effect that the obligation to repair does not apply if the tenant has agreed willingly, in writing, that he or she does not require the repairs. This proviso, however, should not apply in relation to repairs required to make the premises safe, or anything that could pose a risk to anyone's safety.

My final point relates to clause 46, which adds section 73(3). This provides that a tenant is not required to pay rates and charges for water supply if either (a) the landlord fails to require payment from the tenant within three months of the issue of the bill; or (b) the tenant requests a copy of the bill but the landlord fails to provide a free copy within 14 days.

It sounds somewhat reasonable, but it is always the practicality that can be difficult in these circumstances. These provisions, particularly the latter one, may be very severe. If the landlord or his or her agent, for example, happen to be on holidays for a fortnight and for that reason fail to provide a copy of the bill, the tenant would obviously not have to pay the bill at all under this bill, which could be quite a substantial amount. This seems unreasonable if somebody is simply on holidays for two or three weeks.

If a landlord thought that he or she had sent a claim for water charges to a tenant but, three months later, realises that they had been mistaken or, indeed, could not prove somehow that the tenant had received the account—and how you would do that I think is somewhat contentious—then the tenant would obviously receive an unexpected windfall because they would not have to pay the bill. I do not favour provisions that provide for the adjustment of rights of parties other than on a fair and reasonable basis. In my opinion, this provision needs to be deleted or amended to provide for greater fairness.

Some of these are fairly minor points—and, as I said, I am not duplicating here: I am raising points that have been raised by other members—but they do have the potential to create some levels of injustice for either party on some occasions. As I said before, and I stress this: this bill is overwhelmingly beneficial and balanced, and Family First proposes to support it. I will leave the small number of specific issues, as I have raised here today, for consideration by other members.

I should just put on the record that I have never rented a property in my entire life. The Hon. Mr Parnell said that all of us have probably rented at some stage. I have not, but I will be a tenant very soon. We sold our property in recent days, and we will be renting for a little while, so I will be able to experience it from both sides. I look forward to bringing that experience to the next debate.

Debate adjourned on motion of Hon. R.P. Wortley.