The sale of Millers Point properties has ended: it has made inequality worse

The view from the old Workers Flats in High Street, Millers Point

End of the Millers Point sales program

With the sale of the final two terrace houses on Saturday, 3 November 2018, Property NSW announced the end of the Millers Point sales program. Announcement of the successful tender for the sale of the Sirius building is expected any day now.

We'll take this moment to reflect on a number of ways to remember this chapter.

On 19 March 2014 the Hon Pru Goward, Minister for Family and Community Services, announced that ‘high value public housing property assets on the Sydney Harbour foreshore will be sold with the proceeds to be reinvested into the social housing system across NSW’. You can check out her media release at the time here. It said that relocating the residents and sales were expected to be completed within two years. In April 2015 the NSW Government placed a figure of $500 million on the projected estimate of proceeds.

Since the Minister’s initial announcement the Tenants’ Union of NSW has repeatedly called on the NSW Government to allow tenants to remain, especially the elderly and those with strong links to the area. A campaign to allow residents to stay was not successful, other than a handful who remain in properties where the sales have been deferred.

Also, very soon after the announcement, the film-maker Blue Lucine started recording the community's efforts to resist the sell-off. The resulting documentary called 'Eviction' is a powerful record of the way this sad attack on Sydney's heart was carried out. We are privileged to have been present at screenings of 'Eviction' with members of the community. The next viewing will be at Parliament House in Macquarie Street on 20 November 2018.

By December 2016 the NSW Government had sold 133 properties for $349 million. By that time we had started predicting that total proceeds from the sale were going to hit $680 million, well in excess of the $500 million. We and the community argued that this gave the Government the ability to retain some of the housing, particularly the Sirius building.

At the time of the third anniversary of the announcement to sell all public housing properties in Millers Point, we were saying:

'Come on NSW Government, allow the remaining older residents a real choice'. This may be ageing-in-place in their current homes and, an alternative that is supported by the residents, retain some of the units within the Sirius Building and some of the workers cottages for a semblance of a social mix. It's not too late! A win-win situation! You'll make your money and older residents still there can stay.

Our and others' pleas fell on deaf ears.

With the sale of the final two terrace houses at the beginning of November 2018, our records show that total proceeds from the sales of 189 properties is $609.6 million. One real estate agency, McGrath Real Estate, has been responsible for sales totalling $518.9 million.

The median price was $2.5 million. Prices ranged from $1.4 million for a terrace house to $26 million for a flat complex. On top of this, the NSW Government has collected a bonus of $33 million in stamp duty (not counting the stamp duty on subsequent sales).

The figure of $609.6 million excludes the sale of Sirius building and the deferred sales of the 28 units set aside for existing tenants. Estimates in the media for the sale of the Sirius building range from $120 million up in May 2018 to $150 to $180 million in August 2018. This leads to an estimate of the total windfall from sales of over $760 million.

Proceeds from the sales

As of September 2018, the NSW Government reports here that a total of 1,121 residential units for social housing had been completed and a further 260 residential units were under construction using proceeds from the Millers Point sales program. It is unclear whether it is accurate to characterise these dwellings as funded from Millers Point sales - the required level of transparency to assess the claim does not exist. There are also inconsistencies with these claims.

In April 2015, the NSW Government projected proceeds of $500 million. They also said the money would be 're-invested into some 1500 new social housing dwellings, allowing more people on the waiting list to be housed faster'.

Today, although the proceeds have climbed more than 20% higher to over $600 million and another 30% to over $760 from the sale of the Sirius building all but guaranteed, the government is stating that only 1381 homes have either been built or been funded. Based on the original claim in 2015, we should be seeing 1800 properties built or funded already, with a further 500 or so in the development pipeline. This discrepancy has not been accounted for.

Regardless, in March 2018 we wrote here that the construction of new dwellings from the proceeds of sales of Millers Point properties represents small growth only in provision of new social housing stock across NSW.

We also have argued that the NSW Government is wrong to cannibalise existing public housing stock to build new social housing dwellings. This is especially at a time when the NSW Government has a budget surplus of over $4 billion. Indeed, Hal Pawson from the City Future's Research Centre at the University of NSW concludes that none of this booty has been channelled into expanding social and affordable provision. He argues that Housing NSW is overselling its social housing commitment.

The residents

And what of the residents who were forced to relocate? The film 'Eviction' highlights this in a visceral way. The obviously strong ties in the community - with neighbours caring for each other as if family - makes the separation from community all the harder to watch.

A Swedish study by Danermark, Ekstrom and Bodin found premature deaths amongst older residents forced to relocate. (This study is cited on page 70 of Cred Community Planning’s ‘Social Impact Assessment of the potential social impacts on the existing Millers Point community, and the broader social housing system, that may result from the sale of any further Social Housing in Millers Point’, prepared for the NSW Land and Housing Corporation in 2013.) Time may well show that this also is the case with Millers Point. We are aware of at least two suicides and other recent deaths.

Professor Alan Morris of University of Technology Sydney interviewed residents leading to a report for Shelter NSW which is discussed here and here. Professor Morris argues that 'place' attachment was profound and the removal announcement and the actual move were devastating. Those whom he interviewed spoke of deep sadness and anxiety at the thought of leaving. Residents who had moved told of their isolation and melancholy at having lost their social network.

We have argued that the forced relocation of residents of Millers Point highlights the failings of Government when only lip service is given to ‘ageing-in-place’. In 2015 and 2017 the Tenants' Union of NSW made submissions to Elder Abuse Inquiries of both the NSW Legislative Council and the Australian Law Reform Commission (ALRC) here and here. We argued that a government policy, in itself, may constitute a form of elder abuse. We submitted that the NSW Government’s decision to relocate all the social housing tenants in the suburb of Millers Point is an example of systemic elder abuse.

In October 2017 Professor Morris published an article in The Conversation called 'Last of the Millers Point and Sirius tenants hang on as the money now pours in'. Here, he argued that the NSW Government may be patting itself on the back for generating hundreds of millions of dollars by displacing the public housing tenants in Millers Point and the Sirius building. However, it's actions were the planned, deliberate and irreversible destruction of an historic community. The primary focus was on revenue and expenditure. The human costs of policy making were pushed to the side.

On 14 November 2018 Professor Morris will be launching the book entitled Gentrification and Displacement: The Forced Relocation of Public Housing Tenant in Inner-Sydney, Springer, 2019. Professor Morris draws on in-depth interviews and examines the forced displacement of public housing residents in Millers Point, Dawes Point and the Sirius building in The Rocks, and considers the build-up to the government deciding to relocate the residents, strategies deployed to pressure tenants to move, as well as the social and personal impacts of the displacement.

One of the most powerful lines in the film 'Eviction' has a main protagonist pondering who will live in his home when he's gone. So who are the new residents? We have glimpses: it's turned from struggle street to billionaire's row;  model/author and partner from family of merchant banker have come and gone; 'it’s again the home of a gentleman'. And, of course, 'Kent Street' now is known by some as 'Rent Street', because of its many Airbnb listings.

Recently, Rupert Legg of University of Technology Sydney published an article in The Conversation, called 'Making developments green doesn’t help with inequality'. He linked the development at Barangaroo with the plight of the residents of Millers Point:

The NSW government announced the sales [in Millers Point] after Barangaroo’s effect on the surrounding areas began to take place, realising the increased profit to be made. As a result, the development is not only exclusive on the inside, it has also contributed to the displacement of the disadvantaged from surrounding areas. ... Barangaroo is a missed opportunity: instead of promoting social equality, it has made inequality worse.

Tenants’ Union welcomes Labor’s flagged shift on renters’ rights

The Tenants' Union of NSW has released the following statement about reported changes to the NSW Labor Party's Sustainable Communities platform

NSW Labor has flagged a new policy agenda that could change the game for renters, says Tenants’ Union NSW.

Over the weekend, the NSW Labor party’s conference recognised a growing number of families rent their homes in New South Wales, and pledged to modernise rental laws to provide certainty, balance and fairness in the rental market. Early reports suggest this could include placing limits on rent increases, ending unfair evictions, and strengthening rights for renters with pets.

“These would be significant reforms, they’d be welcomed by renters right across New South Wales,” said Ned Cutcher, Senior Policy Officer with the state’s peak body for renters. “The Tenants’ Union of NSW has been calling for this kind of reform for years and it is extremely encouraging to see the discussion taking prominence.”

Mr Cutcher was quick to point out that the NSW Labor party changing its platform at conference time, while in opposition, does not necessarily lead to reform.

“The timing is good because the Government has still not brought in the changes it promised over a year ago, following a statutory review of our renting laws,” Mr Cutcher said. “We’re obviously following that pretty closely, and now we’ll be watching to see how Labor responds when those changes are brought through.”

“We know the NSW Greens have a strong renters’ rights platform so it makes for some healthy debate in Parliament when the time comes.”

Mr Cutcher said a limit on the frequency of rent increases would bring New South Wales into line with the rest of the country, but ending unfair evictions and strengthening rights for renters with pets would be genuine innovations in the Australian context.

“All over the country tenants can be evicted without a good reason, and all over the country families are prevented from making decisions about keeping pets because their landlords say no. For the growing number of renters across Australia these rules seem pretty harsh,” Mr Cutcher said.

“We’d love to see this change in New South Wales and we’ll happily work with NSW Labor to help develop these policies.”

For that matter, we’d love to work with Minister Matt Kean and the NSW Government on this all the more.

Evictions begin at Millers Point

Words and pictures from John Dunn, Friends of Millers Point

This morning the NSW Government is taking action against public housing tenants in Millers Point.

FENCE AROUND SIRIUS

At Sirius the assets branch of the NSW Government is erecting a cyclone wire fence around the site. Family and Community Services (FACS) has informed residents that the fence is being installed to improve public safety.

The fence around Sirius appears to be poorly located for protecting public safety but it is well located if it is in preparation for demolishing of Sirius and its ground-floor courtyards. In the meantime it alienates more of the common areas of Sirius from its residents. Effectively, the government is evicting the remaining tenants of Sirius an inch at a time.

All of the interior common areas have been locked away from the tenants of Sirius. Recently, senior FACS officers cancelled Myra's booking of the Phillip Room which had been booked for a studio session in which people were to draw her. The Phillip Room was subsequently covered in black plastic so that it could no longer be used. Myra's drawing studio sessions were moved to the courtyards of Sirius and proceeded with great success and without incident. Similarly, Myra has had guests for Friday Night Sirius, a barbecue event in the courtyard. Myra has been looking forward to the next Friday Night Sirius barbecue on 2 June. Also during the past few months, the Sirius Foundation has conducted dozens of tours of Sirius which have been booked by more than 1000 people and are conducted by Tao Gofers, the leading architect of Sirius. Initially tours were allowed inside Sirius, but as their success has grown, the areas they are allowed into have contracted.

Watching the fence being erected at Sirius one is reminded of the Berlin Wall going up. If Sirius represents the Heart of Sydney, the NSW Government appears determined to destroy it.

EVICTING A MILLERS POINT RESIDENT

This morning the sheriff was scheduled to evict Peter Muller from 32 High Street, Millers Point. Currently he remains in his home, surrounded by residents and supporters. The staff from the assets branch of the NSW Government were keeping a close eye on proceedings from a safe distance.

Lessons from America - Evicted

"Three generations of Hinkstons, eight people all up, lived in a two bedroom, one bathroom apartment in Milwaukee. It was cramped and mouldy, there were roaches everywhere and no repairs got done. They were there because they had been evicted from their five bedroom house, home for 7 years, and had nowhere else to go. Now sharing couches and the floor, the children couldn't get a proper night's sleep and fell asleep during the day, even through classes. The adults had to find a way to scrape together enough money to find somewhere better."

But the rent has to be paid in the meantime - so will they get to move in their own time, or will they be evicted first?

Evicted should be required reading for all. The holistic nature of the issues raised mean there is no one with a passing effect on our housing system who should not feel some responsibility for that effect.

Evicted is written by Harvard sociologist Matthew Desmond, who lived in the communities he writes about and has previously experienced homelessness first hand. His work excoriates any lingering doubt that society does have an ongoing responsibility to make sure its people not only have a roof above their head at any one time, but a home in which they can plant roots.

Desmond followed the eviction experiences of 8 families in Milwaukee, Wisconsin. These stories demonstrate some part of the range of issues preventing poorer people in the United States from housing themselves and their families. There are single mothers, recovering addicts, crowded multi-generation families. Evicted also pulls back the curtain on the thinking of landlords by following both sides of an eviction. Empathy, understanding and flexibility are all demonstrated - but so is the ultimate divergence of interests. If the rent isn't paid, or the repairs aren't worth the hassle, there is only one response: eviction.

Milwaukee is not Sydney or Dubbo or Albury. Australia is not the United States. What lessons can we take from Evicted? There is a temptation to take the US as a warning, a guide of how not to house people. It can be comforting to feel that things are not as bad here, but that is dangerous thinking which allows things to get exactly as bad here as they are shown to be there.

For instance, Desmond cites the American Housing Survey 2013 that between 50-70% of low-income renters in America are paying 50% of their income on housing (including rent, utilities, and other charges required to house yourself). Our figures look better at first blush - somewhere between 20-40% of low income renters are paying more than 50% income on rent. However, our measures are generally limited to rent. Housing costs properly includes all the things needed to make a dwelling habitable - no one should live in a home without running water or electricity. When utilities are thrown back into the mix, we start to look very similar to the US. An examination of the 2011 Census suggests that at least 50% of low income renting households report paying more than 50% of their household income on housing costs under the same definition as the US.

In part our better position is because of the Commonwealth Rent Assistance. Of Australian renters receiving CRA, which includes renters who are in moderate, or even high, ranges of incomes, more than 25% of CRA recipients would pay more than 50% of their income just on their rent. Include the CRA payment and the number is halved to just 13%.

Evicted also brings to light the structural nature of continuing impoverishment. In the United States structural housing insecurity comes down most strongly on people of colour, and especially black men and women:

There are no figures on similar rates of eviction for Aboriginal people in NSW. In fact, there are no figures on rates of eviction for anyone in NSW, or Australia. We simply do not know how many people are booted every year, nor the cost of those forced moves both to the families being evicted, and to the economy in lost wages, increased support services, and motivated workers. Desmond knows these figures because he previously designed and carried out the Milwaukee Area Renters Survey, a truly impressive piece of work that Sydney and Australia sorely needs to replicate.

The final element of interest to us here in Australia is the impact of tenancy legislation. In Milwaukee, no grounds notices are permitted - and are explicitly used to cover the same multitude of sins we see here in New South Wales. Repairs do have strict codes but enforcing the standards often means becoming vulnerable to eviction in response.

Tenant representation in eviction proceedings in Milwaukee is rare and expensive - only generally available to well-off tenants. In New South Wales we are better off - though our Tenant Advocacy services are severely underfunded and unable to offer assistance to all who need it. The bread and butter work of the Civil and Administrative Tribunal (and its predecessor the CTTT) is tenancy evictions, making up approximately 60% of its entire workload.

If we want renters to have stable, affordable and liveable homes, we need to make a conscious effort to create that environment. It will require significant changes to the way renting is viewed by lawmakers and landlords. Separating the interests of those two groups may be the biggest change of all.

An excerpt from Evicted was published in the New Yorker and is available here: http://www.newyorker.com/magazine/2016/02/08/forced-out

Six year rule ... yet another reason why private renting is so insecure

(Money, The Sydney Morning Herald, 14 October 2015, pp 4-5)

Private rental housing is both legally and structurally insecure.

It is legally insecure because in NSW (and other Australian jurisdictions) landlords may give termination notices without grounds. The Tenants' Union of NSW calls for greater legal security by reforming the law to provide for termination on reasonable grounds only. Read more here.

It is structurally insecure because the private rental market is enmeshed in the owner-occupier market. Most landlords are individual persons who own a single rental property for speculative purposes. They sometimes are referred to as 'mum and dad' investors, but we call them amateurs. Indeed, there's a myth that most 'mum and dad' investors are on average incomes.  This assertion is debunked here.

Up until 2010, studies found that between 7 to 10 per cent of income units across Australia were investors in the residential rental market, although this figure was closer to 5 per cent in New South Wales.  Research into the motivation of landlords in the private rental market may be found here. There have been no more recent studies.

It is highly likely that the above figure is much greater today, because of a significant increase in funds being lent by financial institutions for investment in residential housing. Indeed, figures published by the Australian Tax Office in April of this year show that just over 15 per cent of individuals who lodged tax returns in the 2012-13 tax year, both across Australia and in New South Wales, reported receiving rental income. You may view these figures at Tables 4 and 13 here for Australia and Table 2 here for New South Wales. Also, results from Australian Bureau of Statistics' 'Survey of Income and Housing', published in October 2015, show that across Australia in 2013-14 there were 1.5 million households that owned residential property other than their usual residence. This property can include properties purchased as holiday homes as well as an investment. Read more about this here and the analysis by The Sydney Morning Herald's Peter Martin here.

We have previously argued why the current structure of the private rental market in Australia does not deliver just outcomes for tenants.  Read more here.

Taxation policies encourage speculative activity. Let's look at three such policies...

Firstly, negative gearing ... an individual who negatively gears is operating at a loss: that is, the rent coming in is less than the repayment of the loan. However, they are relying on capital gain when they sell in order to make their profit. Our tax laws allow landlords to deduct interest payments from all their income, not just their rental income or capital gains, thus reducing the amount of tax they pay. For 'mum and dad' investors to maximise their capital gains, they need to be able to sell their property with vacant possession when it suits them, selling to either owner-occupiers or other landlords. This means that a sitting tenant receives a termination notice. Out they go! You may wish to read some of our previous posts about negative gearing here and  here .

A second policy ... when the owner of a property, acquired before 20 September 1985 dies, then generally that property must be sold within two years, otherwise the beneficiaries of the estate are liable to pay capital gains tax. You can check this out here. Again, the estate will want to sell the property with vacant possession. Again, out goes a tenant in order to maximise the capital gain!

And a third, little publicised policy ... it is not just when the landlord sells a property that the tax laws may entice them to give a termination notice to the tenant. Read the first Question and Answer in  Noel Whittaker's column in Money in The Sydney Morning Herald (14 October 2015, pp 4-5) which you can view here.  Well, there's more about this here.  And, this is what the Australian Tax Office says here.  In order to claim an exemption from payment of capital gains tax, the owner of that property must not rent it out for more than six years at any one time. They need to establish that it was part of their principal place of residence for some of this period. But each time that the owner moves back into the property (it again must be their principal place of residence), they revive the six year rule. So after just under six years, out goes the tenant and the landlord moves back in. But then the landlord moves out again ... and in comes another tenant, but with no capital gains tax when the landlord eventually sells.
 

'Six year rule' goes something like this ...

Only your main place of residence is exempt from capital gains tax.

A dwelling is no longer your main place of residence once you stop living in it. However, in some cases, you can choose to have a dwelling treated as your main place of residence for capital gains tax purposes, even though you no longer live in it.

This happens when you lived in the property straight away after buying it (being a date after 20 August 1996), but subsequently you rented it out for less than six years.

And, each time you live in the property (it must be a genuine main place of residence), you revive the six-year rule ... and here-in lies the lurk!  

If you rented out the property straight away after buying it, the Australian Taxation Office deems it to be purely an investment property.

 
Such strategies are encouraged by our tax laws. Tenants in the private rental market will only achieve greater structural security by policies that discourage speculation in housing and that, instead, foster an increased number of institutional landlords. Institutional landlords would be motivated more by the pursuit of rental income and less likely to trade properties in the owner-occupier market. You can read more about the structural changes that we believe would deliver greater housing justice to tenants in the article called 'New face of poverty: older private renters' (Tenant News, No 110, August 2015, pp 10 -11) which you may view here.

And so 'Six year rule' is yet another reason why private renting in Australia is so insecure ...

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.

Top tenant 'mistakes' include knowing the law

Anybody foolish enough to spend time on the internet (you know who you are!) will know we are firmly ensconced in the age of the listicle. Newsworthiness, inanity, and even the number of things listed are irrelevant considerations - 29 Essential Albums Every 90's Kid Owned is what gets the clicks. Indeed, the medium has already reached a higher plane, arriving at the ironic, self-referential listicle.

So with the number of long-term tenants sharply on the rise, it is perhaps no surprise that tenancy law has now entered this brave new world of journalism. Earlier this week, Fairfax Media brought us The 10 mistakes landlords and tenants make.

Next time on The Brown Couch: 27 hilarious but true reasons why Taylor Swift's cat who grew up in the 90's will restore your faith in humanity

The tenant errors nominated do include genuine missteps that often leave renters high and dry - such as failing to provide notice before vacating, or not keeping records of communications with the other side. 

But two 'mistakes' did stand out as somewhat curious:

"Not reporting necessary repairs to the property manager"

"Feeling uncomfortable about asking for changes to the lease upfront"

Self-defeating fools! Of course, tenants are entitled to have repairs for which they are not responsible addressed by the landlord - and tenants are in fact obliged to report damage to premises as soon as practicable after becoming aware of it! And, like most any other contract, the parties to a residential tenancy agreement are free to renegotiate terms. Why oh why - Tell me why! - do tenants work against their own interests in this way? It categorically does not make sense. 

Except, wait...

Could it actually have something to do with the fact that landlords are presently empowered to issue tenants with a notice of termination for literally no reason? And that they can pull the pin at any point - either for the end of a fixed term or with 90 days' notice in a periodic tenancy? Could it be that the Tribunal is required to enforce a valid notice so issued? And that mechanisms for tenants to dispute 'no grounds' notices as retaliatory are notoriously difficult to use?

Of course it does. The threat of arbitrary termination in this manner hangs over the head of every tenant. Renters know their housing is inherently insecure, as our 2014 survey showed. And this naturally influences their approach to landlord-tenant relations. The consequence is that tenants are too often reluctant to enforce basic and fundamental legal rights for fear of putting their landlord offside. It is only too easy for a landlord to be rid of an irritating tenant that insists upon all that he or she is entitled to. And better still, very low vacancy rates mean a replacement will be found almost immediately. 

Perhaps tenants aren't so foolish after all.

It is for these reasons that The Tenants' Union argues for the abolition of no-grounds termination provisions from the Residential Tenancies Act. Instead, we say landlords should have access to an expanded list of legitimate termination grounds, such as needing the property to reside in personally. 

It also goes to show that the media isn't the best source of guidance on where you stand as a renter. For that, you should contact your local tenants' advice service - and of course sign this petition to ensure these vital but underfunded services continue to have the capacity to take your call. 


Read more about the Tenants' Union's opposition to no grounds terminations in our report on five years of the Residential Tenancies Act, available here.

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.