Monday, February 23, 2015

'One strike' evictions will lead to injustice

The NSW State Coalition Government has announced today that if re-elected it will introduce legislation for immediate 'one strike' evictions for public housing tenants who have committed a serious criminal offence.

The change would mean that the NSW Civil and Administrative Tribunal (NCAT) would be required to make orders for the immediate termination of a tenancy where the premises have been used for certain sorts of serious offences.

Currently, the Tribunal is able to decline to make such an order, considering the circumstances of the case and whether termination is justified. Under the Government's proposal, the Tribunal would lose this ability.

If the Tribunal were to lose this ability, we would lose an important safeguard against injustice.

That's because termination proceedings can affect innocent persons. Under residential tenancies law, tenants are vicariously liable for the conduct of household members and guests – so termination proceedings can be brought where an offence is committed by a household member or visitor, and the tenant has had nothing to do with it. Indeed, a tenant may have no knowledge of that an offence has been committed, and they can still be held responsible for it.

Under the Government's proposed change, they'd lose their tenancy immediately, regardless of their state of knowledge or involvement, no matter how unjust that would be.

Other innocent persons may be affected. Even where it is the tenant that has committed an offence, they may have a partner or children who are innocent of the offence and who need housing. Under the Government's proposed changes, they would be evicted immediately too.

To see the injustice that would result from these changes, please read what happened to Sarah Corrie.

Ms Corrie's tenancy was terminated after she let her casual boyfriend stay a few nights at her house, whereupon he did a few $10-$20 marijuana deals from the premises, over a period of two weeks. Ms Corrie was not involved in the drug deals, was not charged, and co-operated with police (they even sent a letter of support for her to the Tribunal). Ms Corrie had never previously had a problem with her tenancy, and she's the sort of person who anyone would say should be assisted by social housing: an Aboriginal woman, a survivor of domestic violence, a single mother with four kids.

Her tenancy was terminated because, at that time, the Tribunal thought it had no ability to decline the order. It was following a decision made in another case by the District Court that held – wrongly – that the Tribunal could not decline termination in cases concerning drug offences. That decision was soon overturned by the Court of Appeal, but in the meantime Ms Corrie's case had been decided. And when you read it, you can see the Tribunal Member struggling with the injustice of it. As the Member said: 'If I had a discretion whether or not to terminate the residential tenancy agreement, I would exercise that discretion in favour of the tenant and I would refuse to make an order of termination.' But the Tribunal thought that, as a matter of law, it could not refuse, and made the order to evict Ms Corrie and her children.

The Corrie case shows an appalling lack of judgment by the housing officers who brought the proceedings, and the dangers of restricting the Tribunal's ability to properly check proceedings and decline orders where justice requires.

The Government should let the Tribunal do its job, not tie its hands.

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