Monday, July 1, 2013

New rights for boarding house occupants in New South Wales

Today the Boarding Houses Act 2012 commences in full.

Until now, only the provisions of the Act concerning the registration (and register) of boarding houses have been put into operation. Today the remaining provisions, including those concerning occupancy principles and occupancy agreements, have also become part of the law of New South Wales.

The Tenants' Union has produced a new factsheet about the Boarding Houses Act 2012, and you can read about it in more detail in an updated chapter in our Tenants' Rights Manual. No doubt we'll talk a whole lot more about its ins and outs over the coming months, as we start to see it in operation.

But for now, let's take a minute to reflect on where this new law has come from,* and just how far it will take us...

Housing advocacy groups such as the Tenants' Union of NSW have lobbied for boarding house reform since the mid-1970's. For most of that time a convincing strategy to produce statutory rights for boarders and lodgers never materialised in Parliament, although some attempts were made.

When the Residential Tenancies Act 1987 passed through the Houses of Parliament in the late 1980s the then Minster for Consumer Affairs, the hon. Deirdre Grusovin, assured boarders and lodgers that legislative protections would be provided for them soon, too. But, although a Boarding Houses and Lodging Houses Bill 1991 was largely agreed to in Parliament, disagreement as to minimum periods of occupancy before the law should apply meant that the bill would never make it into the NSW statute books.

Some years later a differently constituted NSW Government indicated it would examine ways to protect the rights of people living in boarding houses. A period of discussion and consultation ensued, and in early 1998 it was expected that the then Minister for Fair Trading, the hon. Brian Langton, would release an exposure draft of new legislation. A coalition of organisations called the Boarders and Lodgers Action Group (BLAG) - of which the Tenants Union was a member - anticipated that the exposure draft would be riddled with shortcomings, and did not expect to be able to support it. BLAG drew up its own Boarders Bill 1999, to present a clear alternative to the policies anticipated in the Government's bill.

This effectively killed off the Carr Government's ambitions for boarders and lodgers rights. It sent supporters of reform within Parliament into a spin, of sorts, and presented uncertainty as to the way forward for boarders and lodgers rights in New South Wales. By this time the phrase 'boarders and lodgers' had come to describe the large and diverse group of renters that were not covered by the Residential Tenancies Act 1987. No agreement could be reached as to who should be covered by a new law, and which particular rights and obligations should apply to each of the identified groups of accommodation that boarding and lodging denoted. In the circumstances, the Government lacked the political will to argue in favour of a new bill, and the project was abandoned. The anticipated 1998 exposure draft never saw the light of day.

But BLAG's Boarders Bill 1999 lived on. For many years it was used by members of BLAG as an advocacy tool, in the hope that the Government would re-commit to a position on legislative rights for boarders and lodgers. It was a commitment that never came.

In 2005, the Tenants' Union of NSW moved away from arguing for the 'prescriptive rights' regime proposed by the Boarders Bill 1999, and began to advocate instead for a non-prescriptive 'occupancy principles' model based on changes that had recently been made to renting laws in the Australian Capital Territory. These principles would form the basis of a range of standard occupancy agreements, providing a minimum set of commitments to be made by a boarding house operator to a prospective occupant, while allowing the details of rights and obligations to be determined according to the needs of parties to each kind of agreement. This meant that a variety of occupancy agreements, based on a consistent set of rights-based principles, could be used across the range of rental accommodation types to which existing laws did not apply.

The policy gained traction, but was not picked up by the NSW Government during their review and redraft of the Residential Tenancies Act 1987. When the Residential Tenancies Act 2010 became law on January 31st 2011, there were still a number of rental accommodation types that were expressly excluded from the Act's coverage. For housing advocates, rights for boarders and lodgers - along with other marginal renters - became part of the unfinished business of tenancy law reform.

The Tenants' Union produced a four-point plan to reform the marginal rental sector, of which occupancy principles was a major component. The plan was endorsed and promoted by a coalition of housing advocacy organisations in early 2011. Not long after, an 'Inter-Departmental Committee on Reform of Shared Private Residential Services' released a discussion paper called Boarding House Reform. This paper recommended the adoption of occupancy principles and agreements for boarding house residents in New South Wales.

Then, on May 10th 2012, the NSW Government announced that it would introduce laws to reform the boarding house sector. A great deal of work has since gone into bringing the Boarding Houses Act 2012 to its full commencement today. Congratulations to all who have played their part - it's quite an achievement.

But the Boarding Houses Act 2012 is not the solution it could have been for all marginal renters in New South Wales. There will still be many people living in rented accommodation who have no access to statutory rights and formal mechanisms to resolve disputes about the terms of their rental agreements. Lodgers in private residences, some clients of refuges, crisis and supported accommodation, students in residential colleges, occupants of shared households and some caravan park residents are still waiting for a statutory regime that affords them protection against unfair eviction, rent increases, and refusal to meet minimum standards of repair.

This makes no sense. The occupancy principles model that is now law in New South Wales could very easily - and effectively - be applied to all who are not otherwise covered by renting laws in New South Wales.

This business remains unfinished.

*Some of the occurrences referred to in this post are a little before your correspondent's time. Parts of this account cannot be verified by reference to Hansard or other official records. Where required, The Brown Couch has relied on documents from the TU's archive. If you are able to provide an alternative account of the circumstances behind either the 1991 or 1999 boarders' rights bills, please leave a comment...

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