Wednesday, March 11, 2015

Defence Housing tenants get marched out of Tribunal

[UPDATE: this blog post is the subject of a correction.]

A curious development in New South Wales tenancy law, courtesy of the Federal Government: it appears that tenants of Defence Housing Australia in New South Wales no longer have access to the NSW Civil and Administrative Tribunal for resolution of tenancy disputes. Instead, they'll now have to go to the Federal Circuit Court of Australia.

These marching orders come in the form of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015, made last week by Federal Attorney-General Senator George Brandis, under new section 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth), as amended last month by the Federal Courts Legislation Amendment Act 2015 (Cth).

The legislation gives the Federal Circuit Court jurisdiction over tenancy disputes where one party is the Commonwealth – which appears to include Defence Housing Australia.

The instrument deals specifically with residential tenancy disputes involving the Commonwealth in New South Wales, and provides that a party must not make an application to NCAT, but instead go to the Federal Circuit Court. The Court will apply the Residential Tenancies Act 2010 (NSW) in determining the dispute.

Our concern is that because the Federal Circuit Court is more formal and costly than NCAT, Commonwealth tenants – particularly Defence Housing tenants – will have less access to justice.

We do not know why the Federal Government has taken this course; nor do we know whether other States will be affected by similar instruments in the future (the present instrument specifies New South Wales). We're also trying to think of Commonwealth agencies other than DHA that enter into residential tenancy agreements – if you can think of one, please let us know.

In any event, as they affect access to justice for the several thousand DHA tenants in New South Wales, these changes should be reconsidered.


  1. Chris
    when programs are funded by the commonwealth as agreements to the states lets say for example ex SAAP funding ... clients of SAAP were given STATE tenancy agreements yet evictions were determined by the CTTT as the RTA was the superior document and the conditions the provider received federal fundings for were not considered. The eviction would primarily breach the commonwealth agreements by the state allowing these evictions. this behaviour seemed to prompt the creation of the NAWT in NSW as the super tribunal.
    It is a shame that Brandis on face value has created this process especially for defence workers but the Tenants Union will need to help these tenants as best as they can and explain remedies for costs for certain individuals and how to minimise same.
    shame shame shame goliath especially when David is out defending the rights of your country?

    1. Its also interesting to note that the Dept of Finance and Services was the head of the CTTT and capital properties were owned by same.
      ...can't fight the govt. isn't that what they say...

    2. NSW Housing and CHPs are briefed and given short cuts against tenants all the time why should the Dept of Defence tenants cop it any differently.
      wouldn't the tenants be under the expectation that the NCAT is afforded to them?
      Sounds like inequity to me... do they have access to consumer law.
      is their employment contracts linked to housing expectations under their work agreements?


      when you check RELOCATION considerations under defence housing under employment... funny it is the only page 404 under construction

      Sounds like the making of a cross.claim for damages.

  2. Ps. I did mean NCAT of course.

  3. Is this a retro amendment to these leases.
    is the landlord the dept of defence?
    wouldn't a challenge pursuant to superior parties or unequal rights of parties under other laws take it back to NCAT for the tenants?

  4. Where will it end or state. the expectation that a COMMONWEALTH payment of rent assistance should be handed over to CHPs under STATE tenancy agreements. that are primarily ALMO fronts for State Housing.....
    We won't even discuss the clawing of Carbon Tax monies to NSW Housing ... where will it end?
    does this mean that any contract from the commonwealth to state that is not intetpreted correctly by that state can be argued as superior rights in a tenancy dispute?

    on topic though its nice to see that the Lord of the courts can get rid of the serfs by redefining the laws of the land hmmmm......


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