Tuesday, August 25, 2015

Striking back

 Another week goes by, and we draw ever closer to Parliament’s consideration of the Government’s controversial Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Bill 2015. The Government's order of business suggests it may even come before the Legislative Assembly again this afternoon. 

We dissected its contents as a whole in a recent edition of The Brown Couch, but want to have a longer-form look at one section in particular.


Clauses 154B, 154C, and 156A of the Bill allow housing providers to issue ‘strikes’ to tenants for breaches of a tenancy agreement. The issuing of three strikes may permit the landlord to seek termination through the Tribunal. In short, a tenant may be evicted for a series of breaches that, if taken alone, would not be sufficient to justify termination under the current law.

Struck out to Housing? Better hope you still can take your bat and go home…

It is notable that the ‘three strikes’ system is not the NSW Government’s own invention. Most prominently, Colin Barnett’s West Australian Government implemented a similar scheme in May 2011, and Campbell Newman’s Queensland followed through with its own version in July 2013.

As both are relatively recent developments, and available reporting on outcomes appears inconsistent, it is difficult to draw conclusions in the absolute. But data and third party analysis that has emerged from both states seriously undermines key claims being made by our Government about the efficacy of the strikes system elsewhere in the Federation.

Geoff Provest MP has spoken on behalf of the Government in Parliamentary debate on the Bill so far. Perhaps fresh from a quick look over the border from his seat on the Tweed, he had this to say on the 'three strikes' system on August 5:

I am buoyed by the experience of Queensland and Western Australia where more than 80 per cent of first strikes do not progress to a third strike. I have taken the liberty of speaking to some providers in the community housing sector and those who have experience in the Queensland system believe that this is appropriate legislation that is easy to understand and that produces real results.

First, how does the statistical aspect of Mr. Provest’s claim stack up? In narrow isolation, the claim about progress to third strikes is meeting its mark. The West Australian Equal Opportunity Commission’s A Better Way’ report indicates that, between May 2011 and April 2013, 1705 first strike notices were issued to public housing tenants. 234 of those, or 14%, proceeded to a third strike. In Queensland, UQ’s Institute for Social Science Research paper on social housing clients with complex needs found that, in the 2013-14 financial year, 1277 first strike notices were issued, and 51, or 4%, proceeded to third strike.

But crucially, the UQ report also has this to say on the proportion of first strikes that escalate to third:

“Until the policy has been in operation for a full two-year period, it will not be possible to indicate the proportion of first strikes that result in subsequent strikes in any one year. Further, no comparative data is available on the frequency of recurrence of strikes and breaches. It is therefore too early to tell if strikes have been effective in changing tenant behaviour.”
(Our emphasis)

The Western Australian report similarly noted:

“…it is difficult to extrapolate from statistics of this nature a clear and direct link between a policy and its deterrent effect, especially in the absence of any comparison data of the frequency of incidents of disruptive behaviour before the policy was implemented.”

In this regard, we might also suggest that a decline of frequency between first and third strikes may be attributable to a great number of factors – not least tenants that have never breached, and will never breach, their agreement with a degree of regularity that would result in the issue of a second or third strike notice. Therefore, strike notices cannot definitively be shown to induce modification of tenant behaviour. One might also conclude that the system weeds out those capable of dealing with the convoluted procedures surrounding the issue and acceptance of strike notices, leaving those with the most complex needs vulnerable to eviction at strike three.

The Government's assessment, as put by Mr. Provest, also fails to account for other important figures available to date.

For one, the UQ report states that complaints against Queensland public housing tenants increased by a massive 37.5 per cent (to 5463) between July 2012-June 13 and July 2013-June 14 – the latter of which included the first ten months of the three strikes policy. This is certainly alarming, given our concern that the scheme simply induces tenants to complain about neighbours they may be feuding with, rather than attempt to resolve differences by other means.

Moreover, the impact of the policies upon indigenous tenants has been markedly disproportionate across both states. An investigation into the WA system conducted by the ABC found that, from May 2011 to December 2014, 82 of 137 tenants terminated under the scheme were indigenous. And in Queensland, the UQ report notes that indigenous households were “extremely over-represented” in receiving multiple or serious strike notices in 2013/14; 47.7 per cent of 369 relevant households were indigenous.

Finally, whilst legislation that is ‘easy to understand’ is perhaps a subjective matter, we have no hesitation in declaring that Mr. Provest is most optimistic with this aspect of his assessment. The regime established in the Bill is clearly very complex, and almost certain to lead to increased workload, and therefore expenses, for the Department of Family and Community Services. Take a look for yourself here, at Clause 154C, and draw your own conclusions.

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