The amendments in the Bill apply only to social housing tenants and include stripping the NSW Civil and Administrative Tribunal (NCAT) of its discretion to decline to evict a tenant when illegal activity has occurred in their home.
Currently, the Tribunal already has power to evict someone when there are serious breaches of their tenancy, including illegal activity.
The new Bill will stop the Tribunal from being able to consider the tenant’s circumstances, which might include their disabilities, their rehabilitation, or even their knowledge that something illegal has happened in their home.
Instead, if the Tribunal is satisfied that the illegal activity occurred, it will have no choice but to terminate the tenancy.
In the Bill, there is no distinction between the illegal activities of a tenant and of someone else who lives or stays at the property. This means it is possible for a tenant to lose their home for activities they don’t know about or could not control.
The Bill puts parents and grandparents of offenders, and women experiencing domestic violence at risk of homelessness.
Claudia* had been a public housing tenant for 10 years. She had always paid her rent and had never had any problems with Housing NSW.
Claudia had a long-term partner who was an occupant in the property and was the father of her four children, all under ten years of age. Claudia had experienced domestic violence perpetrated by her partner and he had recently moved out.
The NSW Police came to Claudia’s property and found a number of cannabis plants being grown in a cupboard under the stairs.
Claudia’s partner immediately admitted to owning the plants and provided a statement that Claudia had no knowledge that the plants were there.
However, Housing NSW applied to the Tribunal for termination of Claudia’s tenancy, on the grounds that she had used the property for an illegal purpose.
Claudia now faces the possibility of homelessness for herself and her children, despite having no involvement or knowledge of the criminal activity.
Under the proposed changes, the Tribunal must evict Claudia, and will have no discretion to consider her circumstances.
The Bill also introduces a three strikes system, where a social housing tenant can be given a notice from their landlord when anti-social behaviour is alleged to have occurred at their home.
The tenant will have to provide their own evidence that the activity did not occur, and the strike notices won’t be required to tell a tenant where they can get legal advice.
RLC is concerned that the system doesn’t allow tenants enough time to seek legal advice and write submissions.
On 17 September 2015 the Bill passed in the Lower House after some debate and with some amendments. The amendments were made after submissions from key legal and advocacy groups, including a submission from a coalition of Legal Centres, of which RLC is part of. You can read our submission here.
RLC’s view is that the Bill should not proceed, and that retaining the discretion of the Tribunal is essential to ensuring fair outcomes for innocent tenants. The amendments made do not go far enough to addressing the issue of the mandatory eviction of innocent tenants who have no knowledge of illegal activity occurring in their homes.
*Names have been changed to protect the identity of our clients