Residential Tenancies Amendment Bill 2011
Hon Lynn MacLaren; Hon Ljiljanna Ravlich; Hon Max Trenorden; Hon Sue Ellery; Hon Alison Xamon; Hon Adele Farina; Hon Linda Savage; Hon Simon O'Brien; Hon Dr Sally Talbot; Deputy Chairman; Hon Liz Behjat
Second Reading
Resumed from an earlier stage of the sitting.
HON ALISON XAMON (East Metropolitan) [7.54 pm]: I rise to make a few comments on the Residential Tenancies Amendment Bill 2011. My colleague Hon Lynn MacLaren has outlined quite comprehensively the Greens’ position on this bill. In essence, we support many of the provisions that are incorporated within this bill. It has been the subject of quite a lot of discussion for many years with a variety of stakeholders in order to make some important amendments. However, I share the concerns that have been raised by many of the people who have spoken about what appears to be a fairly last-minute inclusion of proposed section 75A, “Termination of social housing tenancy agreement due to objectionable behaviour”. I would like to say a bit more about that.
As I said, I am aware that there are some important, and in fact welcome, provisions within the bill that ensure that tenants will have a bit more certainty in how tenancy agreements proceed. Particularly in the sort of housing market that we are witnessing at the moment, there is the potential for exploitation of some tenants to occur without appropriate protection because the housing market is very tight. As such, I support moves to enable more certainty for tenants, but also to enable landlords to have clearer guidelines on what is considered to be best practice. I want to make it clear also that in no way am I in the category of people who think that all landlords are bad. I understand that many people become landlords because it is for them a form of superannuation, or for a range of other reasons. Therefore, I think it is also important that we do not take simplistic views about the nature of landlords, and I am certainly not interested in characterising landlords as all being grubby or unscrupulous, because I think that is absolutely untrue. Nevertheless, it is important that we have very clear legislation governing the way in which tenancy agreements are entered into, because we are talking about homes and we are talking about a need for shelter, and it is a fundamental human right to have somewhere to live. Therefore, it is important that we recognise the significance of that and afford appropriate protections.
It is on that note that I raise my concerns about the inclusion of the termination of social housing tenancy agreement due to objectionable behaviour provisions. This is an issue that I have spoken about previously in this place regarding what I believe to be the excessively harsh implementation of this policy for some Homeswest tenants, particularly those tenants who are subject to quite severe mental illness and who, because of that mental illness, may suffer, in particular, a one-off psychotic episode and lose their home as a result of that. I refer in particular to proposed section 75A(1)(b) and (c). I do not have so much of a problem with proposed paragraph (a), which states —
(a) used the social housing premises, or caused or permitted the social housing premises to be used, for an illegal purpose;
The reason is that that proposed paragraph, of course, implies that there is some intent, and there would have to be some suggestion that people would be aware of the behaviours. However, proposed paragraph (b) refers to the tenant causing or permitting a nuisance, and proposed paragraph (c) refers to the tenant interfering with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises. On the face of it, that looks like a fairly reasonable provision. No-one should have to live next door to people who deliberately engage in antisocial behaviour. I actually live next door to a Homeswest house. My next-door neighbours are excellent Homeswest tenants; we are very happy with them. The family has lived next door to us for five or six years and they have been a perfectly lovely family to live next door to. I have also had the experience of very negative tenants in the past—not in that home—and those negative tenants were private tenants. They can make life pretty miserable, especially if they decide to have extremely loud parties all the time and to damage and break into properties. I do not by any stretch of the imagination say that it is okay for people to engage in that sort of conduct; of course it is not. I do not hear anyone saying that is okay.
I am particularly concerned that the way in which this policy has been employed by Homeswest, and I have seen it, has meant that people who engage in behaviour that can be described as being antisocial, even though there is no intent to be antisocial, have been picked up by these provisions and have lost their homes as a result.
I have spoken previously in this place about a gentleman who I assisted who had a psychotic episode, lost his house, ended up in Graylands Hospital for two months, recovered from that psychotic episode and then was unable to get bail because he had nowhere to live. He was well, so he could not stay in Graylands. Therefore, he ended up being shipped off to Hakea Prison. He stayed there until my office, not Homeswest, ended up ringing a range of private hostels and finally found a place for him to live. We contacted his lawyer and his lawyer was then able to make application for bail. That gentleman now lives in the community in a private hostel, but he lost his Homeswest house. That was a devastating experience for him and for his family. That is a real example of how these provisions have been employed by Homeswest. When I bring those sorts of realities to this chamber, I am very concerned to see these policies in a very similar form, although I recognise they are not identical, being enshrined in legislation, particularly when this legislation, before this provision was included, had effectively been drafted to provide additional protections to tenants. It really leaves a very bitter taste in my mouth that legislation that otherwise would have been broadly received by consensus has now effectively been altered to such an extent that it includes provisions that could potentially have quite a serious detrimental impact on some of the most vulnerable citizens in our community. I want to make a few other comments on that specifically.
I notice there has been a lot of talk about the inclusion of these provisions and I appreciate some of the members’ discussions. I share the concerns expressed by others about the unintended, but very serious, impact that this may have on some Aboriginal families. The Equal Opportunity Commissioner has been quite up-front about expressing her concerns that these provisions may turn out to be indirect discrimination, particularly against Aboriginal grandmothers. I draw members’ attention to the Equal Opportunity Commission’s newsletter Discrimination Matters for August 2011. An article on the front page is titled “New Bill may leave most vulnerable homeless” and quotes comments made by the Equal Opportunity Commissioner. People should be very concerned about those sorts of comments. I am sure that when members opposite talked about this bill and put it together, that was not what people hoped to achieve by this. The Equal Opportunity Commissioner, Yvonne Henderson, refers to her concern about the inclusion of proposed section 75A. It all comes back to this particular provision. I note that we could have had quite a long debate in this place about the new reforms coming through, which are widely agreed on, and why they were valuable and the like. Certainly my colleague Hon Lynn MacLaren has done a good job in identifying some of the other gaps that could have been covered. It is, therefore, quite concerning that most of the debate has had to focus on the potential problems that could arise as a result of the inclusion of new section 75A. To quote from Discrimination Matters, the Equal Opportunity Commissioner said —
“People in social housing are there because they are in desperate need of shelter and this can include people from ethnic minorities, people with mental health issues and Aboriginal people.”
“It is unfair that a land lord should have the power to evict a woman over a domestic violence incident or a person with mental health issues for disturbing the peace once, when private tenants are more likely to be reported to the police or local council for noisy parties,” she said.
I share the Equal Opportunity Commissioner’s concerns about this. It is also important that when she talked about antisocial behaviour arising from someone with a mental illness, she made the point of saying that a person could be evicted for a one-off occurrence. I am not of the view that simply having a severe mental illness becomes an excuse for a person to engage in antisocial behaviour. Obviously, if somebody has a psychotic episode, they need to receive support and treatment to ensure that the behaviours arising from that mental illness do not reoccur. It is really important to acknowledge that people with a mental illness who may have a one-off psychotic episode are not always responsible for that occurring. We need to be very mindful of what will happen if we are led down a path that means that some of our most vulnerable citizens will become homeless or end up in jail, which is what happened to the gentleman who I assisted.
Again, I note that the Equal Opportunity Commissioner is not the only person who has expressed concerns; concerns have also been raised by a number of groups that have already been named in this place, including the Western Australian Council of Social Service, the Tenants Advice Service, the Community Housing Coalition of WA, Shelter WA, the Western Australian Association for Mental Health, Community Legal Centres Association and Street Law Centre WA. This is not an insignificant number of groups that are expressing concern about how this legislation might come into effect. It would be wise for all of us to be mindful that we should not support legislation that could potentially allow some of our most vulnerable citizens to effectively lose their homes.
I have also been very saddened by the comments made about the unforeseen impacts that this legislation could have, particularly on women who are subject to situations of domestic violence. It is really important to recognise that if people are to lose their tenancies, whether it is because of incidents arising from mental illness or because they look after family members who engage in antisocial behaviour, it could have the effect of penalising exactly the wrong people. I understand that the intention behind this proposed section is to evict those people within our community who are utterly indifferent to the wellbeing and safety of people around them and who make others’ lives absolutely miserable. However, I would argue that there are already provisions to capture those people. I refer again to the Standing Committee on Uniform Legislation and Statutes Review report, which refers to the introduction of proposed section 75A. I note that paragraph 8.53 states —
The genesis for clause 95 —
That is proposed section 75A —
... polarised stakeholder submissions to this Inquiry,
I am not surprised it polarised people because it is highly controversial. The government took a perfectly sound bill and included a provision that will have a whole range of detrimental effects as it is being implemented now by Homeswest on some of the most vulnerable people within our community. The government is taking away the fundamental right of shelter from people who may not have any intention of engaging in antisocial behaviour. I am talking again about people with a mental illness who may have a one-off psychotic episode, who then get the assistance they need, but lose their house anyway; men who engage in antisocial behaviour and subject their wives or partners to domestic violence, but the women end up losing their homes; or elderly Aboriginal family members who take responsibility for housing their families, as a cultural obligation, but become homeless along with the rest of the family. I do not think that is okay at all. In the course of the inquiry, submission 12 from the Department of Housing on 5 October states —
Under the existing legislative framework, we are constrained from effectively terminating public housing tenancies that engage in serious and persistent disruptive behaviour by virtue of the operation of section 62(3) of the Act.
That is the issue I really want to pick up on. Even though the Department of Housing says that it is including this provision because it is trying to address persistent behaviour issues, the legislation is drafted in such a way that a one-off incident can be captured. That means that the very people I am talking about, who should not be captured by this legislation, can potentially be captured by it. I am arguing that this provision does not reflect the ongoing problem described by the Department of Housing.
Hon Max Trenorden interjected.
Hon ALISON XAMON: In answer to the interjection by Hon Max Trenorden, I will reiterate my point. My issue is that the sorts of provisions that should capture antisocial behaviour are those that deal with people who deliberately engage in ongoing systemic bad behaviour. They are not the people I have described here tonight and they are not the people I am saying I am concerned will get captured by these provisions. That is where my concern lies. As I have said before, and I will say again, none of us wants to live next door to a bad tenant. For that matter, none of us wants to live next door to a bad neighbour even if they own their own home. We have a right to feel safe in our own home and to feel that our home is our haven whether we own it or rent it or whatever. I recognise that. But we also live in a community; we live in a community of diversity; we live in a community in which people sometimes have complex lives; and we live in a community in which people have very different needs. I am fine with that. Personally, I embrace that. I recognise it means that we need to be able to somehow address antisocial behaviour whether it is deliberate or not when it occurs. But I do not believe this provision will deal with that. I think it will do exactly what happens with Homeswest now and it will simply mean that some of the most vulnerable people within our community, who do not intend to engage in antisocial behaviour, will end up being made homeless. I am very concerned about that. I have spoken very strongly about that, but having said that, I am aware that, as I mentioned, other provisions in this legislation, which are long overdue, have been welcomed by a range of tenancy advocates. I think it is really unfortunate, if not a little bit cynical, that a provision like this is included within a bill that would otherwise have been, effectively, a consensus bill that people would see as a positive way forward. I will see how it is enacted and I will keep a very close eye on it myself.
With that in mind, I will say that, overall, the Greens will support the bill because there are some important provisions in it. But my concerns about this particular provision remain very strong.