Ignored NFP bill deserves our attention

Despite its sexy ‘bear pit’ moniker, few would argue that much of what happens in NSW Parliament is decidedly unfashionable, and ignored by the majority. Didn’t catch debate on the Impounding Amendment (Unattended Boat Trailers) Bill 2015 earlier this week? Thought not.

The legislature’s private members bills, we suggest, exist squarely within this vacuum. But one that made its way into Hansard in recent weeks has certainly piqued our attention.

Tales from The Lost World of private members bills…

On June 26 2015, Shadow Attorney-General Paul Lynch introduced the Non-Profit Bodies (Freedom to Advocate) Bill. As its straight shooting title suggests, the bill would ensure state funding agreements with not for profit bodies cannot include clauses restricting the recipient from advocating on law and policy issues. It bears a very strong resemblance to a Federal Government Act from 2013, covering Commonwealth-Not For Profit funding agreements. We endorsed that measure as “very good for the quality of our democracy”, for reasons also captured in Lynch’s second reading speech on the NSW Bill:

“A strong, innovative, independent not-for-profit sector is essential to getting government policy right and building a fairer community.”

More particularly, as the resourcing body for Tenants’ Advice and Advocacy Services in New South Wales, the Tenants’ Union exists in symbiosis with those front line organisations. Those are very much the kind of services whose work the bill intends to protect. And their capacity to engage in systemic advocacy can undoubtedly complement and enhance our own. Indeed, many TAAS services have played an active role in the discourse surrounding the Residential Tenancies and Housing Legislation Amendment(Public Housing - Antisocial Behaviour) Bill 2015 - providing submissions, explaining the impact of the proposed reform to Members of Parliament, and liaising with colleagues elsewhere in the community sector. The ongoing More Bang for Your Bond campaign – a joint initiative of the TU and tenants’ services – is another fine example of the work we do together.

Regrettably, the Bill met an untimely fate in the Legislative Assembly. In outlining the Government’s opposition to the Bill, Attorney General Gabrielle Upton described it as predicated on a “false and misleading” premise. The Attorney General further opined:

“We are notional trustees for [funding] dollars, and that responsibility means that they must go to the areas of greatest need where they can make the greatest difference to the lives of the people in our community…Those principles specifically seek to ensure limited funds for public legal assistance are directed towards legal representation, casework, and advice for disadvantaged and vulnerable people.” 

But this is, in our network’s experience, a false dichotomy. Our systemic advocacy work is always informed by the experiences of renters as revealed through advice, casework, and representation. Moreover, we see campaigning for improved laws and policies affecting renters, and engaging in client work to ensure best outcomes under the current regime, as pursuits of the same end – in the Attorney General’s words, ‘making the greatest difference to the lives of the people in our community.’ This is only possible through both systemic and client advocacy. Not to mention the quality of the investment. As the ALP’s Jo Haylen noted in the same debate, not-for-profits 

“provide critical services to our most vulnerable across every sector in the community…According to the Australian Bureau of statistics they contribute $43 billion to Australia’s gross domestic product and engage more than 4.6 million volunteers each year.”

Nonetheless, it follows that a legislated freedom to advocate is likely not to come to be for our sector in this 56th Parliament - the Bill banished to footnote status in its history.

But we continue to support its content as vital to ensuring maximum effectiveness for the tenancy network, and indeed the state's non-profit sector as a whole. 

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.