According to Director of Clinical Legal Programs Anna Copeland, new provisions in the Residential Tenancy Act (RTA) from July 2012 are not functioning in practice as intended.
She said the provisions deal specifically with those in social housing, often vulnerable individuals with mental health issues.
“We want to ensure that the Government’s Disruptive Behaviour Management Policy for social housing operates in a fair and legal manner. At the moment, that is not the case,” Ms Copeland said.
“A tenant must understand why they are in breach of their lease, and the decision has to be procedurally fair and just, but what we’re seeing is tenants being refused the opportunity to address or even see the evidence against them.
“Courts are accepting dated lists of incidents from the Department of Housing to show recurring behaviour, but tenants have no ability to respond or give their side of the story. This is despite the introduction of new provisions designed to protect the rights of social housing tenants.
“We’re not saying the Department of Housing doesn’t ever have a right to evict, but we want people to have a fair hearing and know all of the details levelled against them. The Court should be ensuring that the case is properly proven.”
Ms Copeland added there were also issues with the Department and the Courts’ approach to ‘vicarious liability’ within the RTA.
“A person is lawfully on the tenant’s premises if they are invited, but if a guest begins to behave in ways that are not acceptable, such as assaulting the tenant, they cease to be lawfully on the property.
“Yet the idea of vicarious responsibility is being used for anything that happens on the property – and that’s not valid in law.”
Ms Copeland said that Hansard clearly demonstrated that it was the then Minister’s view that the court could consider issues such as the wellbeing of children and mental and physical health, but this is not being done.
She said the system was hampered by a culture of getting evictions to court quickly, which arose to protect private landlords – but noted social housing had to be handled differently.
The Public Tenants and the Right to Housing: Evictions and Procedural Fairness symposium was held at Murdoch University’s School of Law on Monday, December 10.