Thursday, April 9, 2015

Correction: Defence Housing tenants and the 'Commonwealth tenancy disputes' legislation

When we first noticed the Federal Government's 'Commonwealth tenancy disputes' legislation, we said
it appears that tenants of Defence Housing Australia in New South Wales no longer have access to the NSW Civil and Administrative Tribunal for resolution of tenancy disputes. Instead, they'll now have to go to the Federal Circuit Court of Australia.
Since then we've corresponded about the matter with the office of the Attorney-General, Senator George Brandis. Their advice is that Defence Housing tenancies are not affected by the recent legislation, because of the particular way in which 'Commonwealth tenancy dispute' is defined at section 10AA.

As the Attorney-General's office points out, the definition effects a 'two-pronged approach'. A tenancy must be skewered by both prongs to be caught by the legislation.

The first prong of the Commonwealth tenancy dispute definition requires the Commonwealth to be in the position of the landlord: that is, the 'lessor', 'licensor' or 'grantor'... but not, it should be noted, as a 'sublessor' or 'sublicensor' (section 10AA(1)(a)(i)-(iii)). Most Defence Housing properties are in fact owned by private individuals, let to the DHA, and sublet to DHA tenants – making the DHA a sublessor. For this reason, most DHA tenancies will avoid being caught on prong number 1. 

The second prong of the definition requires a person – other than the Commonwealth or a Commonwealth officer or employee – to be in the position of the tenant: that is, the 'lessee', 'licensee' or 'grantee', other than as a 'sublessee' or 'sublicensee' (section 10AA(1)(b)(i)-(vi)). Because Defence Housing tenants are members of the Defence Force, they fit the definition of 'Commonwealth officer or employee', which means they avoid prong 2... unless they are a sublessee, as many are, but where they are the DHA is necessarily a sublessor, so they are not caught for that reason.

Put another way: where a DHA tenancy is caught on prong 2, it appears that it won't be caught on prong 1; and where it is caught on prong 1 of the definition, it appears that it won't be caught on prong 2.

So, DHA tenants in New South Wales: you're still covered by the Residential Tenancies Act 2010 (NSW), without modification by the Federal legislation, and can go to the NSW Civil and Administrative Tribunal in the event of a dispute.


'The drafting of the legislation in this way', advises the Attorney-General's office, 'serves to reinforce the proven dispute resolution and complaints management system that DHA currently employs.'

It also sharpens the question as to which tenancies, if not those of the DHA, were intended to be caught on the prongs of the Commonwealth tenancy disputes legislation, and to what end.

Clearly, the remaining Badgerys Creek tenancies were a target, with 37 termination applications lodged in the Federal Circuit Court two weeks after the Commonwealth tenancy disputes statutory instrument was signed into existence. Why the Federal Government thought it better to proceed this way, rather than through the 'proven' system of State law and State Tribunal, is less clear.

The TU is acting for a number of the Badgerys Creek tenants who are defending the applications. Any other Badgerys Creek tenants are encouraged to contact us. 

Also apparently caught: residential tenancies of the Sydney Harbour Federation Trust. This Commonwealth agency mostly lets its properties for non-residential purposes, but it currently has a couple of residential properties to let.

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