A heavy, blunt instrument

As if we needed another reason not to buy the Telegraph, on Sunday it weighed into the issue of public housing evictions on grounds of use of premises for illegal purposes.

There's not enough of 'em, bellowed the Tele:

ALMOST every attempt to kick out drug dealers, criminals and troublemakers from public housing fails, with the state tenancy tribunal rejecting more than three out of every four cases.

Of 418 applications made by the state government, only 96 cases, or 23 per cent, were successful, the most recent figures from the Consumer, Trader and Tenancy Tribunal to September last year show.

First problem with this: the very first sentence is contradictory on its face. 'Almost every attempt' at eviction fails... but about one in four succeed? At least it lets you know that a shameless beat-up is coming.

The second problem is less egregious, but it's still important to properly understanding the issue: the CTTT figures don't include all those cases where Housing NSW gives a termination notice on grounds of illegal use and the tenant moves out without Housing NSW applying to the Tribunal. How many of these cases there are, we cannot say (and it is not clear that Housing NSW can say either), but CTTT applications would be the tip of the termination iceberg.

The third problem is that the Tele has missed the real problem: that public housing tenants, when prosecuted for a criminal offence, are being exposed to the double jeopardy of a second prosecution, and possibly a second punishment, by Housing NSW. 

This is unfair to social housing tenants, because no other members of the community face this double jeopardy. (Try to imagine the Commonwealth Bank foreclosing on a mortgage, because a home-owner's son or daughter has been busted with a bag of pot.) Amongst landlords, the idea that enforcing the state's drug laws is part of the job is peculiar to social housing landlords, and Housing NSW in particular has unique access to police information under the NSW Police Privacy Code.

It is also bad in terms of the interests of criminal justice. The criminal justice system is capable of  a range of responses to offending, from fines and good behaviour bonds to home detention and actual imprisonment. This is particularly the case in relation to drug offences, where courts may order an offender to take part in rehabilitation programs, to appropriately punish the offender and start getting them on a better track.

By contrast, in its prosecutions Housing NSW wields only a very heavy, blunt instrument: eviction. When Housing NSW weighs in, it can upend the relatively sophisticated responses that the criminal justice system has made, by making a person (and the rest of their household) homeless and out of the reach of rehabilitation.

So, it's in the interests of justice that the Tribunal has the power to decline an application by Housing NSW for termination. (That said, tenants advocates often have to argue hard for the Tribunal to exercise its discretion.) It would be in the interests of justice, too, if Housing NSW would not second guess the criminal justice system, and not pursue these matters before the criminal proceedings have been finalised, and not where the courts have seen fit to punish an offender with orders that allow – or even require – that they stay in their home.