Thursday, May 30, 2013

National Reconciliation Week, 27 May - 3 June

It's National Reconciliation Week, and we're celebrating on The Brown Couch with a post by John, who is a Paralegal with our Aboriginal Legal Team. Thanks John.

NRW- Let’s Talk Recognition

It is that time of the year again, time to celebrate National Reconciliation Week held between 27 May and the 3 June. The theme for this year is 'Let’s Talk Recognition'— It is about the need to recognise Aboriginal and Torres Strait Islander people in the Australian Constitution, with a focus on how Australians can better recognise each other, and recognise the contributions, cultures and histories of Indigenous peoples. I believe that constitutional recognition of Australia’s first people is a very crucial part of equality and moving forward and developing together as a nation. 

The dates of the NRW hold special historical significance to Indigenous People as it commemorates two momentous events towards reconciliation in Australia. The first of these being the successful 1967 referendum which saw over 90 per cent of Australians vote to give the Commonwealth the power to make laws for Aboriginal and Torres Strait Islander peoples and recognise them in the national census. The second was the Mabo decision in the High Court of Australia, which legally recognised that Aboriginal and Torres Strait Islander peoples have a special relationship to the land—that existed prior to colonisation and still exists today. This recognition was expressed as ‘native title’ – a type of legal interest in land that pre-dates ‘radical title’, and restricts the rights of non-Indigenous land users in circumstances where it has not yet been extinguished*. It has had a profound impact on Indigenous rights to land, and, by association (and in conjunction with other legal and social developments), approaches to Indigenous housing.

This is borne out in New South Wales through schemes under the Aboriginal Land Rights Act 1983 and the Aboriginal Housing Act 1998 – where rental housing is owned and, in most cases managed, by Aboriginal communities for Aboriginal people. These laws are about land rights and housing - they have no direct correlation with ‘native title’ as such. But they might be seen as tacit recognition of the need to do better by Indigenous communities, especially considering Australia’s varied approaches to Indigenous people since colonisation. In some ways, such schemes could be seen as an attempt to put reconciliation into action – but if we are to take this view, we must also recognise that there is a great deal more to be done.

Anyone can get involved in NRW with events being held all around the country. If it’s not possible to attend these events I would encourage people and organizations to celebrate and acknowledge the week in their own ways. These can be simple things like playing Aboriginal or Torres Strait Islander music in your workplace, purchasing indigenous artwork to hang around your office or simply displaying the free 2013 NRW Poster. 

We all know the importance of recognition and National Reconciliation Week is the perfect opportunity to get involved and recognise Indigenous people and their culture. To register a reconciliation event go to and help bring Australia forward. 

*There is much to be said about the extinguishment of native title. The basic tools for extinguishment are provided in the Native Title Act 1993. A series of prominent legal decisions since Mabo have profoundly influenced this law. For a fair understanding of native title and its extinguishment, further reading is essential.

Tuesday, May 28, 2013

Launching 'Clearing House' – the TU's social housing estate redevelopment blog

Today the Tenants' Union launches a second blog. Clearing House is the TU's record of what's going on in social housing estate redevelopments.

 As we say on the new blog:
Over the last 10 years, estate redevelopment has become an increasingly big thing for Housing NSW – and for the many tenants who have to live with it. Looking ahead, it's only going to get bigger.

When news breaks that your estate is to be redeveloped, it can be hard to know where you stand. Should I go? Should I come back? Should the redevelopment happen at all? Plans get made and revised. People come and go. Work starts and stops. Promises may be made, and broken.

The purpose of this blog is to try to keep track of what's happening with estate redevelopment, on the ground in each estate. We'll try to log announcements, events and changes of plans as they happen, and link back to earlier information so you can see how things may have changed.

In doing so, we'll be taking our information from official public statements and documents by Housing NSW, the NSW Land and Housing Corporation, and the responsible Ministers, from media reports, and from tenants and workers on estates – so please tell us what you know in the comments or by email.

Hopefully all of us – tenants, advocates, housing officers, Ministers! – will become a bit better informed, and a bit wiser, about how social housing estate redevelopment is actually going, and how it might go better. 
Clearing House starts its round up of developments with posts on Millers Point and Riverwood North, with more to come.

Your regular Brown Couch service will continue as usual.

Thursday, May 23, 2013

Federal 'life raft' for Queensland TAASs

Newsflash from Queensland: the Federal Government has today launched a 'life raft' for the Queensland Tenants Advice and Advocacy Services defunded by the Queensland State Government.

Federal Treasurer Wayne Swan and Housing and Homelessness Minister Mark Butler have put $2.5 million on the table to keep the services going for another six months – provided the Queensland State Government makes longer term arrangements to keep the services going.

With the offer of funding also comes a warning. Minister Butler told the media:

'I’ve also made it clear to the Newman Government though that we reserve the right – if they don’t do this – not only to withhold the $2.5 million, but to review other arrangements we have with the Newman Government in the housing area, to ensure that really they look at this again with some common sense'

More from the Treasurer:

'These services are recognised as a core state and territory responsibility — every other jurisdiction in Australia funds tenant advice and advocacy services — and last month all states and territories agreed in principle to continue providing these services.'

And Minister Butler:

'The most effective way to reduce homelessness is to prevent people becoming homeless in the first place and services such as QTAAS help to do exactly that.'

We couldn't put it better ourselves. Bravo to the Federal Government, and to all the Queensland tenants who have spoken up for their TAASs – now it's over to the Queensland State Government.

Wednesday, May 22, 2013

Landlords: always in control?

Last night Triple J's Hack program aired an interesting segment about Australia's relatively weak renting laws. If you missed it, you can find the podcast here.

The segment was inspired by a recent Choice Magazine report, which is published on pages 34-37 of the current edition (May 2013). Its focus is on the unusual provisions common to Australia's renting laws (other than Tasmania) that allow landlords to end tenancies without having to explain why. As the Choice report explains, "of the 34 OECD (Organisation for Economic Cooperation & Development) countries, Australia is one of the few that allows "no-grounds" evictions. Plus, renters are forced to accept short leases and very few restrictions on rent increases."

We've talked about how Australia's renting laws compare internationally before, and the TU's Senior Policy Officer was quoted in the Choice report, so we're not exactly surprised by what they had to say. But the discussion around this report on Triple J's Hack - which has spilled over onto its Facebook page - has been most interesting indeed. Many tenants have confirmed that asking for things like repairs and maintenance does actually make them nervous. And many landlords have jumped in to defend themselves. Of course, everyone has their story...

But there are a couple of running themes within this discussion that are worth a closer look. The first comes from a comment made by the Real Estate Institute of Victoria's Robert Larocca during the set piece in Hack's report. Larocca says that the abolition of terminations with no grounds would be a "problematic move for the people we expect to be putting their property out there for rent", and that landlords should have the right to recover a property without a reason. "After all," he says, "this represents the fact that the property belongs to somebody else, and they need to be able to work out what they want to do with it."

This begs the question - what, aside from rent it out, can a landlord do with property? There are two easy answers to this: they can sell it (and cash in on its value), or they can leave it vacant (and forego rental income). Whether or not they do either will depend on how much they owe the bank, the price they can get for the property, and whether they can afford to meet the cost of keeping the property without the help of a tenant.

The other common theme is the rather odious idea that landlords are doing us all a favour by speculating on property prices. The argument runs a little something like this:

I work hard for my money
And I bought a house
And rented it out
(So that I could make more money)
But if tenants have too many rights
(And cost me too much money)
Then people like me will stop.
Where will you all be then?

Of course, these are really just two expressions of the same theme. Property investment is not about building houses, it's about building wealth... and landlords in Australia reserve the right to dispose of any tenant who stands in the way of wealth.

Being able to evict a tenant without explaining why allows landlords to end tenancies that are costing too much money (eg because the tenant keeps asking for repairs, or kicks up an almighty fuss any time the rent goes up); or that stand in the way of capital gains (eg because the landlord wants to sell, but having a tenant in place might turn off potential buyers).

Landlords usually avoid selling properties unless they stand to make a profit, even though it costs a lot to keep one in the meantime. Many can't actually afford it year to year, but due to the generosity our governments show them they press on, copping incredible losses as they go. They're hoping that sooner or later someone will come along and offer to buy the property for more than it cost them to purchase it in the beginning - notwithstanding that they've probably done nothing to add any value to the place themselves - in order to recoup their losses and make a little extra on the side. But, if that happens, and the new buyer wants to move in, landlords can issue a notice of termination on the grounds that they are selling* - they wont be hindered in explaining that they wish to end the tenancy in order to realise a capital gain (or indeed, a loss).

So, let's assume for a minute that landlords don't insist on the right to end tenancies without explanation because they hope to sell at a profit. Where does that leave us? Quite simply, it leaves us with landlords reserving the right to avoid the cost of being a landlord. Because, as the Choice report says, a tenant who knows how easily they can be forced to move is less likely to ask for money to be spent on the property by way of repairs, or complain about a hefty rent increase, etc. It is ironic, of course, that sometimes landlords will make good on this ever-present threat. Ending a tenancy without grounds will usually end up costing just as much money as it saves - perhaps even more - due to the costs and losses associated with finding a new tenant. But still, it happens.

Presumably, landlords don't like to see it this way. Nobody likes to be told they are miserly or mean, which is kind of fair enough. There are any number of ready-made justifications for cutting ties with a tenancy - and you'll see quite a few of them on Hack's Facebook page. Everyone has their story.

As we've already acknowledged, being a landlord is a costly business. Like any speculative investment, it's a risky one, too. A lot of landlords have borrowed too much to pay for their investment properties, on the expectation that prices will always go up. No wonder so many flinch when the hot water service goes bust and needs to be fixed urgently, or when a tenant takes ill and can't pay the rent for a couple of weeks... All of a sudden that pathway to wealth becomes an albatross around a highly indebted neck.

Perhaps the "no grounds eviction" trump-card is simply a way for landlords to remind themselves that, no matter what happens, they are always in control.

* As long as the tenancy is not for a fixed-term, and vacant possession is required as a condition of sale - see our Landlord ends agreement factsheet for more information.

Negative gearing fail

It was unedifying spectacle all round. Yesterday, after Shadow Treasurer Joe Hockey indicated to media that a Coalition government would conduct a review of tax policy, including the tax treatment of negative gearing, Treasurer Wayne Swan hurried to assure the negative gearers that a Labor government would not touch it:

'We ruled out any change to the existing arrangements in our response to the Henry (tax) report.'

Whereupon the Shadow Treasurer hurried to get the initial media reports retracted and assured the negative gearers that nothing would be changed, at least not in a Coalition government's first term.

While the Treasurer and Shadow Treasurer hasten to do nothing about negative gearing, the public discussion about this wretched bit of policy will proceed. And it has proceeded. Almost three years since we found we had to tell tenants and policy makers that negative gearing was not their friend, we find that more and more people we speak with harbour no illusions about it: it does no good, only bad, to our housing system, to our government finances, and to the fairness of our society.

On the bad it does to our housing system: it distorts the rental sector to the disadvantage of low-income renters in particular, by facilitating speculative purchases of higher value/higher rent properties, shuffling the relatively affordable stock out of rental, and doing next to nothing for new supply. 

On the bad it does to government finances: in 2010-11 (the most recent year for which figures are available), Australia's negatively-geared landlords posted a net loss of $12 billion on their rental properties, which they deducted from their non-rental incomes at tax time. As result, about $4 billion that would otherwise have been collected in tax wasn't.

And so to just one example – in the media today – of the bad that negative gearing policy does to fairness. While it forgoes the billions that it might otherwise have collected in tax from negatively geared landlords, the Federal Government goes about looking for 'savings' in its expenditures – such as on social security payments to people doing it really tough. Earlier this year, the Government withdrew from some 84 000 single parents their entitlement to Parenting Payment, and put them on the significantly lower Newstart allowance instead. The Salvation Army has noticed many of them have had to turn to it for help. The Salvos quote one of them:

'Since I have been put on Newstart, I am unable to afford the rent I signed a contract on, and have had to break my lease and move into a caravan, making my life very hard. I am forced to live substandard.'
This person has been let down not just by an increasingly mean social security system, but by an unaffordable, distorted rental market too.

Wednesday, May 15, 2013

Why 'authorise' additional occupants?

As every public housing tenant knows – or should know by now, after the recent amnesty – a tenant must disclose any additional occupants to Housing NSW. There's a few reasons for this, the main one being that Housing NSW needs to know who is in the household and what their income is in order to work out the appropriate rent rebate. That's fair enough.

But it's not the whole story. Once a public housing tenant has disclosed an additional occupant, Housing NSW says it will decide whether to 'authorise' or 'approve' the additional occupant – or, alternatively, refuse to authorise them.

We think this part of the process is not 'fair enough': it's presumptuous, paternalistic and, in all likelihood, counterproductive.

Here's what Housing NSW's policy says about the process for 'authorising' or 'approving' additional occupants. From the 'During a Tenancy' Policy:

Additional occupants

Housing NSW will assess all applications for additional occupants. If Housing NSW approves an application for an additional occupant, the new person will become an approved member of the tenant’s household.... For more information on the assessment criteria for approving applications for additional occupants, go to Approving additional occupants.

That link takes us into the Tenancy Policy Supplement, where we find:

9. Approving additional occupants

In most cases, Housing NSW will approve applications for additional occupants if:
  • It does not cause severe overcrowding, and
  • The additional occupant does not have a poor record of tenancy with Housing NSW, and
  • Housing NSW is reasonably satisfied that nuisance will not occur by allowing the person as an additional occupant, and
  • The household composition is suitable for the type of property. For example, if an additional occupant wishes to take up residency in a Senior Communities property, Housing NSW will only approve the application if the composition remains consistent with the objectives of Senior Communities, and
  • If the additional occupant owes any money to Housing NSW from a previous tenancy, the occupant has made arrangements to repay the debt, and
  • If the additional occupant has a current tenancy with Housing NSW, this tenancy must be finalised, and
  • The additional occupant is not an unsatisfactory or ineligible former tenant.
Housing NSW may defer approval for an additional occupant if the tenant’s rent account is in arrears.

So there's the list of circumstances in Housing NSW might refuse to approve of a disclosed additional occupant. These are all circumstances that Housing NSW would rightly like to know about – and it will be less likely to find out them, because of the 'approval' question.

Think it through: if a tenant is concerned that Housing NSW will disapprove of their additional occupant because Housing might think that place is getting overcrowded, or they've got a poor record with Housing NSW, or any of those other reasons, the tenant may opt to not disclose the additional occupant at all. If there was no prospect of a high-handed disapproval of their choice of household member (and no vague threats Housing NSW makes about taking action against the tenant if they naughtily persist in keeping a unauthorised disclosed occupant – more on that in a moment), a tenant will be more likely to disclose, and Housing NSW will be more likely to find out about those circumstances it's interested in. 

Now, Housing NSW doesn't want just to know about these circumstances; rightly, it will want to be able to do something about them too. For each of these circumstances, there is a better way of dealing with the situation than disapproving of the additional occupant.

If there's overcrowding: Housing NSW can warn the tenant about the term of their agreement regarding the maximum number of residents (assuming its a reasonable maximum, of course), and take action for breach of the maximum number term, if things get really bad. If the additional occupant has a poor record with Housing NSW, or they're a young person in a seniors' block, or Housing NSW is concerned about possibility of nuisance, it can warn the tenant about the nuisance term of their agreement and vicarious liability, keep a closer eye on things, and take action for breach of that term, if need be. If the additional occupant owes Housing NSW money, Housing NSW can ask them to pay up.

So what does disapproving of the additional occupant achieve? Housing NSW will ask the tenant to get rid of the additional occupant. And what if they don't? Housing NSW's policy is confused and vague on this point. Going back to the 'During a Tenancy' Policy:

If a tenant does not apply for permission for the additional occupant to stay, Housing NSW will consider that person to be an unauthorised occupant. If a tenant has unauthorised additional occupants living in their property, they will be breaching the terms of their tenancy agreement and Housing NSW may take action under the Residential Tenancies Act 2010 or the Rent Subsidy Non-Disclosure Policy. 
The policy confuses 'non-disclosed' additional occupants with 'unauthorised' additional occupants. As we said at the outset, we accept that tenants must disclose and Housing NSW needs to be able to act on non-disclosure – but we're talking here about where the tenant has disclosed and Housing NSW has refused to authorise. The policy is not clear on this.

Strictly speaking, the 'Rent Subsidy Non-Disclosure Policy' is not relevant; and the provisions of the Housing Act for rent rebate cancellations and prosecutions for fraud are not enlivened where the tenant has disclosed everything as required. Looking at a recent Housing NSW tenancy agreement, there's no term requiring the tenant to boot out any occupant who does not meet the approval of the landlord – and if there was, it would arguably be invalid and void for inconsistency with the tenant's right to quiet enjoyment and reasonable peace, comfort and privacy.

In fact, the consequences of having an unauthorised disclosed additional occupant are all a bit uncertain – which indicates that matters don't often get pressed to this point. And this indicates that the question of 'authorisation' is not doing much work for Housing NSW. But it is likely to be putting tenants off disclosing in the first place.

If Housing NSW wants to maximise disclosure – and it should – it should consider ditching its hang-up about 'authorisation'.

Monday, May 13, 2013

Down and out in Queensland

Last time we mentioned Queensland, it was good news: after the State Government cut the funding of the Queensland Tenants Advice and Advocacy Services, the Federal Government stepped in with emergency funding through to June this year, and a statement that it would 'ensure that Tenancy Advice and Advocacy Services funding is a condition of any future Commonwealth/State agreements'.

Now it's almost June... and the Queensland State Government is still refusing to fund the services.

There's a Commonwealth/State agreement currently being renegotiated: the National Partnership Agreement on Homelessness. The agreement states that one of the 'core outputs' to be delivered by States and Territories is:

tenancy support for private and public tenants, including advocacy, financial counselling and referral services to help people sustain their tenancies. [Emphasis added]

It is difficult to see how much more plainly the necessity of services like the Queensland TAASs needs to be spelt out.

We expect it will be spelt out soon enough – in mounting tenancies disputes, and in mounting numbers of persons evicted from their homes.

Meanwhile, the Queensland State Government is reviewing that State's Residential Tenancies and Rooming Accommodation Act 2008. To pick out just one of the numerous changes it is considering: in proceedings for the termination of a social housing tenancy, the Tribunal might be expressly prevented from considering whether the termination will result in the tenant becoming homeless.

One wonders what the Queensland State Government thinks it's doing as a party to a National Partnership Agreement on Homelessness at all. 

You can support the Queensland TAASs by signing the petition here, and keep up to date with their struggle here.

Wednesday, May 8, 2013

The public interest

If your idea of a 'housing recovery' is seeing house prices settling back down from their insane, fevered state, while you save your deposit and patiently watch the interest grow, you might not be quite so thrilled about yesterday's interest rate cut as some other stakeholders in the housing market.

You also may not be very impressed on being told it's a cut that you 'thoroughly deserve'. Just like you were probably a little miffed on being told that the cut in interest rates in December last year was 'an early Christmas present'.

Of course, changes by the Reserve Bank to the cash rate are neither presents nor rewards for Australians being good. In this particular instance, the cut has been made in the context of a highly overvalued Australian dollar, which has been a crushing weight on non-mining exporters, and a looming contraction in investment by the mining sector, on which the national income has come to increasingly – dangerously – rely. It is also made in the context of what remains an over-priced, unaffordable housing market, which may respond by simply sucking up more of Australia's now slightly cheaper money, at the expense of those sectors of the economy where investment is needed to properly adjust to the rapidly changing circumstances of the nation's trade.

These are big challenges and, as well as needing a response in policy, they need some frank explanation in public discourse. That's what the Australian people really 'deserve'.

Monday, May 6, 2013

Happy 255th birthday, Maximilien Robespierre

The Institute of Tenancy Culture Studies sends its regards to French Revolutionary and birthday boy Maximilien Robespierre.

(Maximilien Robespierre, 1758-1794) 

As a member of the Committee for Public Safety and leader of the Jacobin Club, Robespierre was the principal figure in the phase of the Revolution known as the Reign of Terror (1793-94), during which the young republic, beset by invading forces on all sides, widespread internal revolt, and economic chaos, executed some 17 000 French men and women in the name of revolutionary virtue. The Terror ended when Robespierre himself went under the guillotine... by which time the republic had repelled the invaders, put down the insurgents, stabilised its economy, raised an army that would go on to dominate Europe for the next two decades, and created a political program that would inspire revolutionaries and reformers for the next two centuries.

And ever since, the prim, dandyish figure of Robespierre has been an object of scholarly fascination – sometimes admiring, more often horrified. He gets our attention because of one curious, if apparently minor fact: he was a tenant. In all his admittedly-not-very-long life, Robespierre never owned his own house.

In fact, for the most significant part of his career, Robespierre was a boarder. In an earlier phase of the Revolution, when the Paris mob and their Jacobin leaders were violently repressed at the massacre on the Champ de Mars, Robespierre was given shelter in the home of a cabinet-maker and fellow Jacobin, Maurice Duplay. Robespierre's room above the workshop and courtyard would be his home for the rest of his life (except for short period when he moved out to rent an apartment with his sister – which Maximilien instantly regretted and soon ended to move back in with the Duplays).

It was not, it should be said, an ordinary boarder-landlord relationship. Robespierre was doted on by Duplay and his family, with not-strictly-virtuous treats of coffee, white bread and oranges (Robespierre would later return the favour, if in a dubious way, by nominating Duplay to a seat on the Revolutionary Tribunal). Visitors to Robespierre's room came away and reported the extraordinary way in which the Duplays' house was decorated, with a proliferation of little portraits and busts of their boarder peeping from the walls.

That's those who got in to visit; others record that the Duplays enjoyed keeping their guest to themselves and their own circle, and that Robespierre became inaccessible to a wider group of (former) friends and revolutionary colleagues after moving in to the Duplays'. One can only speculate as to whether the power of the boarder's 'master of the house' may have shaped the complex power-plays of the French Revolution, and the course of history.