Auditor-General calls 'three strikes' on anti-social behaviour policy

The Auditor-General office today released its report into FACS' anti-social behaviour policy. If we lived in a world led by evidence-based policy decisions it should be the nail in the coffin of the punitive anti-tenant approach to social housing.

But let's take a brief look at the key point in the report, which does make other recommendations about the systems and training in FACS, and focus on the key question of - is the scheme doing what it is meant to?

As the Report says the stated aims of the three strikes approach was  supposed to:
• improve the behaviour of a minority of tenants engaging in antisocial behaviour
• create better, safer communities for law-abiding tenants, including those who are ageing and vulnerable.

It is clear from the report that these aims have failed, and the government should reconsider its approach.

 

Only 21% of tenants thought that things had improved since the strikes system was bought in. But even worse - what do FACS think. Has it made neighbourhood safety and security better?

A resounding no.
But this shouldn't come as a surprise to the government or the Department - at its introduction, we told the government the policy would not help and that more support, not more punishment was the answer.

Since it's still relevant here is our recommendation to government at the time:

The Tenants’ Union of NSW agrees that a better response to dysfunction in neighbourhoods should be a high priority for Government. We accept the prevalence of dysfunction is a genuine concern for residents in neighbourhoods with high concentrations of social housing tenancies, and areas of relative socio-economic disadvantage. But the schemes set out in the Residential Tenancies and Housing Legislation Amendment Bill (Public Housing – Antisocial Behaviour) Bill 2015 go too far.
The Tenants’ Union does not support the bill. We call upon the NSW Government to withdraw the bill, and embark instead upon a genuine process of consultation with tenants, housing advocates, social housing landlords and other interested parties to develop and implement strategies to improve cohesion and resilience in all neighbourhoods where there are high degrees of disadvantage. By contrast, the bill will only encourage adversarial and punitive responses.
Where criminal and antisocial behaviour cannot be tackled through greater investment in neighbourhood and community cohesion, the Residential Tenancies Act 2010 already provides adequate avenues for social housing landlords to end tenancies, including on all of the grounds set out in the bill.

This aligns with the views of many other experts in this area. The experiences of Queensland and WA also demonstrated the ineffectiveness. It is unfortunate that government did not listen then, and continues not to listen now.

Instead it appears that rather than address the evidence presented, the government is doubling down on the punitive approach - introducing new mandatory evictions, bonds on public housing tenants, and changing the strikes process to make it more likely first strikes will be issued.

FACS Housing inner city exclusion policy won't work

A couple of weeks back you may have seen news reports that people convicted of drug supply or drug manufacture offences will now be excluded from public housing in a number of inner city Sydney suburbs.

FACS Housing announced the new Inner City Local Allocation Strategy at the end of February and immediately sent out letters to applicants on the waiting list for inner city areas. The letters informed applicants they are now required to consent to a criminal record check if they want to be considered for housing in Redfern, Waterloo, Surry Hills and Glebe. If they are found to have any drug dealing or drug manufacture convictions within the last 5 years applicants will then be excluded from these locations, although they may be offered a property in other inner city suburbs.

The strategy was introduced with no consultation with the range of organisations that generally assist the applicants, particularly those who will be impacted by its introduction. It is also unclear whether any consultation occurred with the residents of the local communities affected.

If we had been asked we would have told FACS straight out - we think this is bad policy. The strategy is deeply flawed and won't achieve the outcomes the Government is hoping for.

To begin with the strategy could be unlawfully discriminatory. In the Guardian story linked above, Community Restorative Centre points out the policy will disproportionately impact Aboriginal and Torres Strait Islander applicants who make up 25% of people released from prison in the affected areas, as well as applicants with psycho-social disability (for example issues with mental health and/or addiction). It is not just those who have convictions who will be excluded, but also applicants who don't consent to a criminal record check or simply don't respond to the initial letter requesting consent to undertake the check. And we know there are a range of reasons - poor literacy or language barriers, change of address, illness, and so on - why vulnerable applicants might be flagged as 'no response' in the system and excluded on that basis.

What will be the impact for applicants in the area? Those who are excluded from Redfern, Waterloo, Surry Hills and Glebe because of a prior conviction will effectively be blacklisted from 77% of the public housing in the 'CS1' (Inner Sydney) area. By funneling a greater proportion of people into a smaller number of properties (the remaining 23% in Inner Sydney locations), this may mean a longer time spent on the waiting list to get into other housing in the area. There were 1740 applicants on the list for CS1 at 30 June 2017 and 5-10 year waiting lists for all property types.

Apart from the lack of consultation before its introduction, the strategy has also appeared to be rushed in its drafting and implementation. The only policy documentation that FACS has pointed towards when they've been asked for more detail on the strategy are a basic factsheet on FACS' website and a reference within their current Eligibility and Allocations policy that simply states allocation of public housing properties may be subject to a Local Allocation Strategy. Neither of these offer much practical guidance or detail on how FACS expect the strategy will be implemented and administered.

The policy has changed in a few significant ways in the last month. It changed from only applying to estates to now covering whole suburbs, from being policy to 'a one year trial', and originally applied also to people who had only been charged with offences, this has since been dropped. The latter two changes are positive, and likely the result of significant pushback from the housing and homelessness, legal and community sectors.

But perhaps most concerning is the 'perpetual punishment' approach of the strategy - the way it further penalises an individual who has already been punished. Mindy Sotiri, Program Director at the Community Restorative Centre, told the Guardian Australia:

“The key thing for me [about the introduction of the strategy] is that this is a really troubling precedent that extends punishment beyond the judicial system, which really has not worked anywhere ...

The whole point of the work that we do is saying ‘you might have done something wrong, but you’ve done your time, and now we’re going to give you every opportunity to build a life that’s not about going to prison’.”

Excluding people from housing in certain areas - where they might already be accessing support or treatment services, have employment, or have family or friends or other established supports - has the potential to undermine their attempts to reintegrate with the community and rebuild their lives.

What does work? Appropriately resourcing the support services and programs that help empower individuals and communities to address the underlying and complex issues leading to drug use and/or dealing. As Sotiri told the Guardian:

“It’s not very exciting politics to say ‘we’re going to tackle homelessness now’ or ‘we’re going to put case managers into the estates’. None of that sounds very exciting or innovative, but it’s actually what’s required.”

Just the basics (or what we know about the Inner City Local Allocation Strategy so far)

Who does this affect?
This will affect you if you are currently on the waiting list or will be applying in future for public housing in the CS1 (Inner City) allocation zone and CS3 (Leichhardt Marrickville) allocation zone. All public housing applicants who wish to be housed in the CS1 or CS3 zones will be asked to 'consent' to have their criminal record checked.

This does not affect existing tenants in the area.

This does not affect existing tenants in another allocation zone applying for a transfer into the area.

This should not affect you if you are a tenant subject to a management transfer or are being forced to relocate during the redevelopment of the Waterloo Estate.

How does it work?

When applicants are nearing the top of the waiting list they will be sent an information letter and consent form requesting consent for FACS to undertake a check. After receiving the form applicants will have two weeks to return their forms.

The check will involve sharing of information only in relation to drug supply and/or manufacture. No information on other convictions will be sought from NSW Police or received by FACS. If applicants do not consent to the criminal record check they will not be considered for housing in Redfern, Waterloo, Surry Hills and Glebe. Applicants who refuse consent for a criminal record check may still receive offers for housing in other suburbs in the CS1 allocation zone.

If the criminal record check indicates an applicant has a criminal conviction for drug dealing or manufacture in the last 5 years they will be excluded from housing in Redfern, Waterloo, Surry Hill and Glebe. They may still receive offers for housing in other suburbs in the CS1 allocation zone.

The 5 years is counted from the date when FACS make the inquiry of the Police.

What if an 'excluded' applicant has a good reason for wanting to live in the area?
Applicants excluded because of prior convictions who have a compelling reason for wanting to live in the area can appeal. FACS has not provided clear guidance around this but reasons might include things like having children in school or childcare in the area, established relationship with support or treatment services, family supports. Connection to the area will be considered for Aboriginal and Torres Strait Islander applicants. FACS has given some indication that requests for consideration will be sympathetically assessed.

Before requesting consideration on these grounds applicants will generally need to follow the general process and first consent to a criminal record check - though FACS has given some indication that if compelling reasons exist an applicant can approach directly to ask for an exemption from exclusion and avoid a criminal record check.

If excluded on the basis of a conviction an applicant can then appeal the decision and apply for consideration. FACS advises that internal reviews will be overseen by the district Director of Housing Services in the first instance. Applicants then have the right to an independent review by the Housing Appeals Committee if they don't think the decision was fair.

Need advice?
If you have received a letter about the Inner City Local Allocation Strategy and are worried about how it might impact you and/or require advice or assistance for an appeal against an exclusion get in touch with the local Inner Sydney Tenants Advice and Advocacy Service at Redfern Legal Centre.

Five key changes to social housing laws

In October 2015, NSW Parliament passed the highly contentious Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Act - affecting the rights and obligations of all social housing tenants in NSW, and restricting the capacity of the Tribunal to consider the evidence before it. Strictly speaking, these changes have applied since enactment. But FACS Housing will begin actively using the new rules against public housing tenants from today, having published a new operational policy to guide its decision making in this regard. Community housing providers are expected to do the same in the near future. 

Strike notices are an important component of the new laws

Many of the new rules are highly complex. So The Tenants' Union has put together a guide to the five most important changes for tenants, community advocates, support persons - just about anyone who is not a lawyer - and reproduced it in full here. Any tenants contacted by their housing provider regarding the new laws should also contact their local Tenants' Advice and Advocacy Service for assistance as soon as possible.

1. Strike notices

Social housing landlords can use a system of three ‘strike’ notices. These are letters issued by the landlord to the tenant when the landlord believes the tenant has breached the tenancy agreement, but the breach is not serious enough to terminate the agreement.

A strike notice is only an allegation against the tenant. But if a tenant has received two notices in a 12-month period, the landlord may seek termination of the tenancy from the Tribunal instead of issuing a third strike.

FACS Housing’s policy is to issue strike notices against tenants for alleged antisocial behaviour (for example, hosting a loud party where bottles were thrown onto the street). But the new law allows social housing landlords to issue strike notices for any alleged breach.

Allegation letter

FACS Housing’s policy is to first send the tenant a letter concerning the alleged breach. This letter describes the alleged conduct and provides the date it is said to have occurred. It invites the tenant to attend an interview to discuss the allegation. The tenant should attend this interview, or immediately contact FACS Housing if they are unable to attend at the nominated time. A tenant should take an advocate or support person to the interview.

The law does not require landlords to send an allegation letter, and community housing providers may choose not to.

Warning notice

If FACS Housing decides that the tenant has committed the breach, and the tenant has not received a strike notice in the previous 12 months, it will issue the tenant with a warning. This does not count as one of the strikes required to seek termination of the tenancy at the Tribunal.

The law does not require landlords to issue a warning notice, and community housing providers may choose not to.

Strike notice

If the landlord decides a tenant has committed a breach - and in the case of a FACS Housing tenancy, the tenant has already received a warning notice in the last 12 months – it may issue the tenant with a strike notice. 

The letter must describe the conduct, provide the date it is said to have occurred, and explain why the landlord thinks this was a breach of the tenancy agreement. It must also allow the tenant to write to the landlord to dispute the strike notice and ask that it be withdrawn. Disputing a strike in this way is useful in any later termination proceedings (see 'Termination for three strikes').

Review of a strike notice

If a tenant has written to the landlord to dispute a strike notice, and the landlord has decided not to withdraw it, the tenant may ask for the strike to be reviewed by a separate panel. The landlord must allow the tenant at least 21 days from its decision not to withdraw the strike to ask for a review. The review panel can confirm a strike or require the landlord to withdraw it.

FACS Housing uses the Housing Appeals Committee as its review panel. Community housing providers are expected to do the same.

Termination for three strikes

If tenant has received two strike notices in the previous 12 months, the landlord may issue a notice of termination to the tenant instead of a third strike. This allows the landlord to apply to the Tribunal for orders terminating the tenancy for the three alleged breaches.

The Tribunal may not be able to consider all the evidence regarding strikes one and two when deciding whether to order termination. If the tenant did not write to the landlord to dispute strikes one and two, the Tribunal may be forced to accept that the breaches occurred.

2. Neighbourhood impact statements

Social housing landlords can provide a 'neighbourhood impact statement' to the Tribunal when seeking termination of a tenancy for breach of an obligation under the tenancy agreement. This is a summary of statements made by the tenant’s neighbours about the effect the tenancy has had on them. The Tribunal must consider the contents of a statement when deciding whether to order termination, but does not have to agree with it.

A statement can only be provided after the Tribunal has found that a breach occurred. It cannot be provided as evidence of the breach.

Contributing to a statement

Neighbours asked to contribute to a neighbourhood impact statement should be aware that the statement, and the Tribunal proceedings it is used in, may identify them as participants. Although the law requires the landlord and Tribunal to make efforts not to identify participants, it does not guarantee anonymity.

3. Mandatory termination

When a social housing landlord applies to terminate a tenancy for some types of illegal use of the property, damage to the property, and injury to a neighbour or landlord's representative, the Tribunal is now required to order termination of the tenancy if it finds that the conduct occurred. There are limited exceptions for especially vulnerable tenants, and tenants with children who would face hardship if evicted.

These changes are highly complex. The consequences for affected tenants will vary greatly depending on the alleged conduct and the circumstances of the tenant and other residents.

4. Repairs certificates

Social housing landlords can provide the Tribunal with a certificate of costs, when seeking reimbursement for repairs to damage to the property that the tenant caused (or allowed others to cause). The Tribunal must accept the certificate as proof of the reasonable cost of the repairs.

Previously, a tenant could accept responsibility for damaging their property, but argue that the landlord’s costs were unreasonably high.

5. Landlord repossession

When the Tribunal orders termination of a tenancy, it must order that the landlord is to take back possession of the property in 28 days or less (unless ‘exceptional circumstances’ apply). Previously, the Tribunal could order repossession at a later date. 

Social housing and its bold new future

Today the NSW Liberal Government has announced a new 10 year social housing strategy, Future Directions for Social Housing. The Sydney Morning Herald has called it "an historic decision to privatise public housing in New South Wales". We call it an incentive to fix the Residential Tenancies Act 2010.

It's true that one of the main thrusts of the strategy will be the redevelopment of estates, with all the uncertainty and anxiety that brings for tenants who start to wonder whose homes will be next to go... But it will also place an ambitious degree of faith in the private rental market to more or less "rescue" tenants from social housing.

Like the discussion paper that came before it, the strategy is based around three key pillars -

• More social housing
• More opportunities, support and incentives to avoid and/or leave social housing
• A better social housing experience

Under each of these, the Land & Housing Corporation and FACS Housing will be given a series of tasks.

More social housing means:

• the Land & Housing Corporation will increase their estate renewal and redevelopment activities. This will be "in partnership with the private sector" through the Communities Plus program. We'll be keeping our ear to the ground for details as each new development is announced, and making notes on our Clearing House blog. The strategy says "FACS will work closely with communities to avoid unnecessary disruption to tenants' lives". We certainly hope so.
• ownership or management of more properties will be transferred to community housing landlords. The strategy aims to increase the proportion of social housing owned or managed by the non-government sector to 35%, and will require community housing landlords to assist with the Land & Housing Corporation's relocation needs when redeveloping estates. They'll also be required to report on tenant outcomes according to a set of targets - we'll be keeping an eye out for those.
• the Government will be relying on proposed new funding models, such as the Social and Affordable Housing Fund and Social Impact Bonds - which means attempting to bring private finance into the construction of new and renewed social housing.
• further attempts at tackling "under-occupancy".

More opportunities, support and incentives to avoid and/or leave social housing means:

• Family and Community Services will "remove work disincentives" for public housing tenants. This includes revising policies that create work disincentives, and reviewing the rent setting model and eligibility criteria. This is really the good news.
• trying to improve educational and employment opportunities for social housing tenants. They'll do this through the allocations system - providing houses for people who can work or study in areas with better access to jobs and schools. It sounds like a good idea, but it's just as likely to create further residualisation and stigma for those who miss out. They'll also try to create new employment opportunities for social housing tenants through new repairs and maintenance contracts.
• introducing "Personal Support Plans" - where a "client" agrees to "realistic goals" in exchange for tailored supports and services. The architects of the Housing First model must be scratching their heads in wonder, and we're concerned about how these plans will interact with a residential tenancy agreement. What will happen to tenants who fail to achieve their goals? Will they lose their housing, as well as their tailored supports and services?
• increasing the budget for Private Rental Assistance products, to try and convince more tenants to try and survive in the expensive and chronically insecure private rental market (which the government considers a form of "independence") where they will not need to rely on social housing assistance.
• collaboration across the Whole of Government to better coordinate assistance. The problem is, FACS have forgotten to include NSW Fair Trading in the list of agencies they'd like to work with - even though they are in the midst of a review of the Residential Tenancies Act 2010 and could work towards giving tenants greater stability, liveability and affordability in the private rental market.

A better social housing experience means:

• improving customer service and using more methods of communicating with tenants.
• implementing new repairs and maintenance contracts.
• mandatory evictions for tenants who get caught up in criminal activity.

It's a big plan - it reflects a high degree of ambition, for better or worse. It will present new opportunities as well as risk - particularly for public housing tenants, who will start to wonder just how secure their current tenancy is. But unless changes are made to the Residential Tenancies Act to give greater stability to tenants in the private rental market, the answer remains "comparatively so". Decamping to the private rental market should remain an option of last resort.

Most of all, this new strategy comes with a great big list of things to do. We'll be keeping a close eye on how FACS and the Land & Housing Corporation begin to work through its implementation, and how it progresses from here.

Things to look out for in 2016

Welcome back to the Brown Couch for what we expect will be another big year.

Here are some of the things we'll be watching out for in 2016...

1. The current review of the Residential Tenancies Act 2010

We spent quite a bit of time talking about this over the last half of last year - and thanks to the NSW Greens Member for Newtown, Jenny Leong, a few people spent the holiday period talking about it as well.

NSW Fair Trading's discussion paper is still open for comment, so if you haven't already put pen to paper and sent in your thoughts about renting in New South Wales, please do so soon. They'll be taking submissions until January 29th. If you're stuck for something to say, have a look at the TU's Quick Guide to the review - available here.

Fair Trading will produce a report on the Act, based on its discussion paper, for the responsible Minister to table in Parliament. This must be done before the middle of the year, so we'll know soon enough where the NSW Government stands on stability, liveability and affordability for the one-in-three of us who live in rented homes.

2. Sensible discussion about tax reform in a federal election year

Our views on tax reform are long held and oft stated - we'll be pretty disappointed if 2016 delivers an increased GST at the expense of more sensible changes to our tax regime.

NSW Opposition Leader, Labor's Luke Foley, has recently said he'd consider supporting an increase of the GST from 10% to 15% in order to fund schools and hospitals, and this puts him at odds with his Federal counterpart. If we're going to see a federal election based on tax reform - which has always looked likely - we'd like see the discussion re-focus on winding back the generous tax concessions we give to amateur landlords.

As for schools and hospitals - we'd like to see those funded, too. Perhaps the NSW Opposition Leader could take another look at our land tax proposals, rather than call for a bigger tax on consumption, while on his quest for a new source of revenue.

3. Implementation of last year's "antisocial behaviour" reforms for social housing tenancies

We spent a bit of time talking about these reforms last year, too - including our discovery that the legislative changes commenced just in time for the summer holidays.

The laws are now live - which means the Tribunal is already bound to consider them - but we're still waiting for FACS Housing and other social housing landlords to finalise the policies that will determine how and when they will use them. We're expecting FACS Housing to finalise their policies towards the end of February, but we're not sure where most of the 30 or so registered community housing landlords that might use these laws are up to. Let us know if you come across anything.

We'll be keeping a particular eye on the use of "one strike evictions" and the mandatory 28 day limit for vacant possession orders whenever a social housing tenancy is terminated in the Tribunal. The legislative provisions relating to these policies must be reviewed between December 2017 and December 2018, so we'll be keeping tabs.

4. Developments in the social housing portfolio "strategy", particularly as it relates to estate redevelopment and urban renewal

2015 ended with a spate of announcements about increasing the social housing portfolio in New South Wales. We've covered these on our Clearing House blog - with news so far concerning Macquarie Park, Glebe, and Waterloo; along with more general announcements about the way social construction is to be delivered through Communities Plus and the Social and Affordable Housing Fund (SAHF).

We're expecting further announcements about the SAHF early this year, and we're also hearing rumours that a report from the Social Housing discussion paper of late 2014 might finally be released. There's a high likelihood that this will lead to further divestment in tenancy management by the NSW Government, with more tenanted properties to be transferred from FACS Housing's watch to registered community housing landlords. We'll have to wait and see...

In any case, the growth of community housing landlords is set to continue. We'll be keeping an eye on reports from the Registrar of Community Housing's office, as the first compliance checks under the National Regulatory Code start to happen.

5. New repairs and maintenance contracts for public housing tenancies, and a Parliamentary Inquiry into their management

Late last year we mentioned that the NSW Legislative Assembly's Public Accounts Committee is conducting an inquiry into the management of public housing repairs and maintenance contracts - submissions close in early February

We also mentioned that the Land & Housing Corporation was in the process of changing the way it does business with repairs and maintenance contractors. We now understand that new contracts are ready to roll, and we expect to hear more about this soon. But there are many problems with the way public housing is maintained, and these new contracts alone won't fix everything. The Parliamentary Inquiry could produce some important insights into how this system functions, and how it could be improved.

No holiday cheer for social housing

Hear ye, hear ye! By proclamation, and just in time for the holiday season, the NSW government's antisocial behaviour laws have commenced.

You can read more about the substance of the changes in our previous briefings, and see them as written in the Residential Tenancies Act 2010.

If you are approached by your social housing provider about anti-social behaviour, don't hesitate to get in touch with your local Tenants' Advice and Advocacy Service. This is a new process for your landlord, and there is a lot to keep an eye on.

There are no more hearings set down for 2015, but these laws can potentially affect all undecided social housing cases that are in the Tribunal at the moment as well as any new matters that may arise in the new year. FACS- Housing NSW has not yet published their policies concerning the use of these new laws for public housing residents, and we also haven't yet seen any policies from community housing providers.

We'll keep you updated as these laws are implemented in the new year.

In the meantime some holiday reading for us all from the Queensland Mental Health Commissioner who commissioned a report on the impact of the three strikes policy implemented in that state in 2013.
The summary of its key recommendations are:

• Better planning to meet social housing needs, provision of alternative housing solutions and monitoring outcomes for tenants with complex needs
• Improved communication with tenants about the anti-social behaviour policy and consideration of additional steps to reduce confusion between “strike” and “breach” processes
• Combining enforcement with prevention, early intervention and rehabilitation support
• Adopting a more systemic approach to supporting tenants with complex needs and integrating with other support services.

Antisocial Behaviour Bill passes Legislative Council

The Government's Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Bill 2015 has now passed through the Legislative Council. A motion to refer the Bill for further inquiry did not succeed.

Further amendments, proposed by the Christian Democratic Party, were agreed to before the Bill was passed. These amendments will ensure the Tribunal retains some of its discretion in matters concerning "one strike evictions".

Essentially, the amendments are a combination of proposals put by Government and the Opposition - the Tribunal's discretion will not be removed in cases where injury or damage is caused by a person other than the tenant; or where termination may cause undue hardship to a child, a person in whose favour an apprehended violence order may be made, or a person with disability.

It's not much, but it's something... Rather than have its hands tied, the Tribunal might find a way to wriggle out of causing injustice, when social housing landlords try to end tenancies without full knowledge or consideration of the facts.

Otherwise, the Bill remains as proposed by Government. For more details, including the Hansard record, see here. It now returns to the Legislative Assembly for concurrence, then to be made into law.

Antisocial Behaviour Bill in the Legislative Council

Yesterday the Government's Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Bill 2015 was introduced in the New South Wales Legislative Council.

We understand the Greens have moved a motion to refer the Bill to a Parliamentary Committee, for further inquiry. The motion calls for the "bill to be referred to Standing Committee No. 2 for inquiry and report and in particular, whether the provisions of the bill are appropriate for effectively addressing antisocial behaviour in social housing; the impact of the bill on social housing tenants' access to fair and just review process; and any alternative legislation, administrative or policy approaches which may provide more appropriate redress for antisocial behaviour in social housing."

Debate on the Bill has been adjourned to allow Members to consider this motion, as well as a number of amendments that have been proposed by the Opposition and the Greens.

The Tenants' Union hopes all the Honourable Members of the New South Wales Legislative Council give the motion to refer the bill for inquiry the consideration it deserves.

Given the lack of consultation during the production of this Bill with tenants, community workers and other interested parties, an inquiry of this kind should be welcomed. It would provide a much needed opportunity to discuss the problems this Bill seeks to address - the specific causes of anti-social behaviour and the impacts upon neighbourhood cohesion; the reasons why it appears to be more prevalent within social housing communities; and the kinds of policy and legislative responses that may actually address such problems in a meaningful way.

Government's 'antisocial housing' bill amended and passed

The Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Bill 2015 has finally made it's way through the NSW Legislative Assembly. The debate was long, with many MPs speaking about their experience and understanding of antisocial behaviour within social housing communities before putting it to the vote. You can find what your local MP had to say by scrolling through the hansard documents - but be warned, this stretches out to about 80 pages of reading material.

Both the Government and the Opposition tabled some amendments to the legislation - the Government's amendments were agreed to as it passed through the Legislative Assembly; the Opposition will have to rely on the support of the Greens, the Shooters and Fishers, the Animal Justice Party and the Christian Democrats in the Legislative Council. We've had a quick look at the amendments and they're a bit of a mixed bag.

In a nutshell, the Government's amendments will: return discretion to the Tribunal on making termination orders, but only in a very narrow set of circumstances; give tenants a little bit longer to respond to or appeal a "strike notice"; and clarify that an anonymous "neighbourhood impact statement" may only be used to establish the impact of a tenant's breach on neighbours, not whether a breached has occurred.

The Opposition's amendments will: go further on returning discretion to the Tribunal in cases where it needs it to avoid unjust outcomes; give tenants a little bit longer still to respond to or appeal a "strike notice", and clarify that the timeframe for response or appeal is a minimum, not a maximum; allow tenants to make submissions about the details outlined in a strike notice in the Tribunal if circumstances warrant it; ensure tenants are entitled to see a copy of an anonymous "neighbourhood impact statement" if used in the Tribunal; and ensure that not all termination orders relating to social housing tenancies will require vacant possession to be returned within 28 days, but only those to which the bill relates.

We'll consider the amendments in more detail in a later post. Either way the final legislation will be changed in some form or another from its original form. That, of course, is a very good thing. But we're still not convinced this legislation is the right way to tackle antisocial behaviour in communities where social housing tenants live.

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.