Friday, June 5, 2015

The rule of law

There's been a lot of focus on federal politics in the media over the last week. Some of it has been about housing affordability, which has mysteriously found its way into the national political discourse. But there's also been a bit of talk about the "rule of law".

It's the rule of law that has inspired today's discussion. What may or may not have been said about the Australian Government's ability to make a person stateless gives rise to a similar conversation about how a person may be made homeless. The link between statelessness and homelessness is not an entirely tenuous one - both concepts feature, in some way, in international human rights covenants that Australia has signed up to.

During the week, concerns have been raised about whether it should be a Government Minister, or a competent court of law, who can decide to strip a person of their Australian citizenship. It has been suggested that it's sometimes a little tricky to get hold of the evidence one might need to achieve this outcome in court, so it would be better to leave it to the Minister to make an "administrative decision". Others have said "no - that is precisely what courts are for". Their argument is that if you haven't got enough evidence to convince a court then you shouldn't have enough evidence to convince a Minister.

What happens if we apply the same kinds of argument to housing?

First, we need to acknowledge that a person renting in the private rental market can be stripped of their tenancy with little more than an administrative decision - that is, a landlord can decide to end the tenancy without a reason. But that's a different kind of administrative decision than the sort a government Minister might make, because it is not subject to judicial review. Such a decision used to be subject to review, in a way. Under the Residential Tenancies Act 1987 the tribunal had discretion not to end a tenancy if that was appropriate in the circumstances of the case. But when the Act was reviewed and rewritten in 2010, the discretion was removed. Sometimes the rule of law just doesn't go your way.

But things get a little more complicated when the landlord is the government. Tenants in public housing are subject to all kinds of administrative decisions made by workers in the department of Family and Community Services. Many of these decisions have a direct impact on a person's housing - whether they will be housed; whether they can move to another house; whether their rent will be reviewed; whether their housing assistance will be taken away from them. And where these decisions are subject to review it is by the internal processes of the department of Family and Community Services and a Ministerial committee, not by the courts.

Thankfully for tenants in public housing, when Family and Community Services decides to end a person's housing assistance - usually making them homeless - there is a final check on that decision: they issue a notice to terminate the person's tenancy, citing the grounds upon which they say it should end. If the tenant disagrees with those grounds, or has anything to say in response, the matter may go before a tribunal. The tribunal considers the evidence from each side, then determines whether or not the decision should stand.

This is the rule of law in action. But the process may be under threat.

We know that the Government is considering a range of reforms to tackle what they've referred to as 'anti-social behaviour' in public housing. We know that this could include a probationary period for long term tenancies. We don't know that probationary tenancies will not end arbitrarily, by issue of a termination notice without a reason; without regard to the tribunal, or an independent review of all the available evidence.

The rule of law has a long history. It can be traced back to the Magna Carta, the foundational document that established that English kings are not above the law. Parts of the world will celebrate the 800th anniversary of the Magna Carta in just over a week - on June 19th 2015.

For what it's worth, and in so many respects: let's hope our own celebrations are not marred by a diminished rule of law.

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