Making villains homeless with a 'one strike' eviction rule

Reports today suggest the NSW Government will contribute to Homelessness Prevention Week by introducing 'tough new laws to evict criminals and problem tenants'. Now, we haven't been given a copy of the bill, or properly consulted on its provisions - as is the common practice - so we can't comment on specifics. But we've been given some information about how it will attempt to meet the Government's objective, and we have some very serious concerns based on what we've been told.

The Daily Telegraph - those noble champions of justice and housing - have evidently been given a different brief. They've said:

Community Services Minister Brad Hazzard will introduce laws to the lower house today which allow the immediate eviction of rapists, paedophiles and violent thugs - and anyone convicted of committing a serious offence on public housing property.

Sounds like a pretty easy sell, right? Only the law already does all of that, and more.

A conviction is not required to evict a criminal tenant, and, as we understand it, this wont change. Tenancies can currently be brought to an end where premises are more likely to have been used for an illegal purpose than not - because to use the premise for an illegal purpose is, rightly, a breach of a residential tenancy agreement. Tenants who are accused of criminal conduct may lose their tenancy, and their housing assistance, based on a finding in the Tribunal, which arrives at its conclusions on the civil standard of proof. That standard is 'the balance of probabilities' - or more likely than not, on the evidence. That, of course, is easier to achieve, and requires a lower standard of probity, than a finding at the criminal standard of proof: 'beyond all reasonable doubt'.

So, if that's not going to change, what is? Here's what the Telegraph says:

Under the legislation to go into parliament, the NSW Civil and Administrative Tribunal (NCAT) will have a maximum of 28 days to terminate a tenancy where a person has committed serious illegal behaviour in a public housing property.

That's not quite how we understand it. What we've been told - and what has been reported about these changes in the past - is that NCAT will have its discretion to decline to make orders to terminate a tenancy, where warranted in the circumstances, removed in matters where there has been a breach of a residential tenancy agreement related to certain criminal offences. That means termination in such matters will be mandatory. It will also be immediate. The 28 days the Telegraph refers to is more likely the timeframe in which a tenant will be required to pack up their things and give the property back to the public housing landlord, after the Tribunal has made its mandatory termination order.

But the Tribunal's discretion not to terminate is important. It is a sensible check against the actions of a landlord, and its removal will lead to injustice. In particular, it will lead to severe outcomes for people caught up with the conduct of criminals through mere association - as was the case for Sarah Corrie who we have written about before. But it will also lead to severe outcomes for people who are caught up in petty offences that can, and should, be reasonably resolved through the criminal justice system.

Let's face it - the idea that NCAT would knowingly let a rapist, peadophile, violent thug, or anyone using their property to commit a serious offence remain at large in a tenancy, against the wishes of the landlord, and in the face of evidence that could sustain a criminal conviction, is simply absurd. And even if it would, such tenants might soon find themselves in prison, and their need for housing assistance would be properly deferred. That is, unless they have a family on the outside who still needs somewhere to live.

It is always the difficult cases that lead the Tribunal to even consider its discretion, let alone exercise it. It is not the clear cut case of a bad guy terrorising the neighbourhood and somehow avoiding capture each time the plain-clothes detectives set up another sting; but where someone in a vulnerable condition has done something regrettable, unretractable, and - according to established principles of justice - ultimately redeemable.

The recent case of Ms Jones (unreported) really demonstrates this. After considering four similar matters where it was asked to exercise its discretion, and declined to do so, the Tribunal did decline to terminate Ms Jones' tenancy. The following extract from the written reasons (paragraphs 12-17, used with Ms Jones' permission) explains part of the reasons why.

Trigger warning: the following extract contains information about domestic violence and sexual assault.

The respondent gave evidence and was extensively cross-examined. She also relied upon evidence from her Parole Officer, and support person. Her documents included expert reports from two psychologists, copies of counselling notes, and a number of character references, along with a copy of the Order of the District Court in relation to the criminal proceedings. The respondent was convicted of taking part in the supply of a commercial quantity of a prohibited drug, after a plea of guilty had been entered. She was placed on a two year good behaviour bond.

The tenant gave evidence of a life marked by sexual assault and domestic violence. She said she had first been sexually abused whilst babysitting when she was about 11. The abuse continued for about 3 years. When she was 16, her mother, who has a mental illness, threw her out. She went to live with a foster family. Her co-accused were members of that family. Since then, she had had a number of abusive partners. Most recently, in January 2013, she had been subject to a violent rape in her home. This left her feeling vulnerable and depressed. Whilst she had been drug free since moving to her current premises 7 years ago, she turned to prescription drugs (oxycontin) and marijuana to escape her trauma. Her son had moved out and was living with her mother, with whom she has had a strained and problematic relationship.

At the time of the offence, she had been battling cellulitis, was on crutches, and had been in and out of hospital. She had just returned from staying with her sister when she received a phone call from one of the co-accused, asking to visit. She said that she was relieved to have someone come to stay. When they arrived and asked whether they could bring some marijuana to dry out, she agreed, expecting them to bring a small amount.

The next day she awoke to find a very large quantity of drugs in the house. She said during the hearing that she asked them to take it away but they told her it was not possible. She took the line of least resistance and went to bed. The following day the police burst into the house and executed a search warrant. She and both her visitors were arrested.

Since that time she has again ceased to use illicit drugs. She said that she is very sorry for her actions, being the most stupid thing she has ever done. She realises now that her actions placed everything she had been working on in jeopardy.

The tenant's Parole Officer gave evidence that she was working to develop a plan to assist the tenant. This was put into place after sentencing in March 2015. The tenant has cooperated with everything that has been required of her so far. This has included involvement with a relapse prevention program, and counselling through both her GP and a psychologist. There is a possibility that she may be required to attend a domestic violence program. She can be subjected to home visits without notice, and drug testing if required. The Parole Officer gave evidence that homelessness would make it very much more difficult for the agency to manage the engagement, and for the tenant to comply. She said that evicting the tenant from stable housing would be like "pulling the rug out from under her." "Making her homeless would be creating a problem we are trying all the time to fix."

By exercising its discretion, and declining to terminate Ms Jones' tenancy, the Tribunal has allowed her to continue along a very important process of recovery. If the Tribunal's discretion is removed, as is proposed, the next Ms Jones to come before the Tribunal - and every last one after that - will, quite simply, be destroyed.

The Tenants' Union's briefing on the NSW Government's proposed reforms can be found here.