This piece was first published in The Mercury.
Eighteen months ago a young mother of three was informed that she would be evicted from her Housing Tasmania home because “the tenancy hadn’t worked out”. When she asked for reasons she was told that she would not be provided with any nor would she be afforded a right of review. Around the same time in other parts of Tasmania, other Housing Tasmania tenants were being told that they were being evicted and that no formal reasons would be provided nor a right of review offered.
Housing Tasmania is a landlord to more than 10,000 Tasmanians. Its objective is to ensure that the socially and financially disadvantaged, particularly those with special and/or complex needs, have access to appropriate and affordable housing.
In the past, Housing Tasmania has informed tenants of the reasons for their eviction and then provided them with a right of internal review. If the tenant remained unhappy with the decision they then had a right of external review before the Magistrates Court.
There are a number of reasons why tenants at risk of eviction should be provided with reasons and a right of review.
First, the eviction may be unjust because the tenant was not guilty of the breach alleged. Secondly, the eviction may be unreasonable because it was based on information that may have been mistaken or malicious. Finally, the eviction may be harsh when the personal circumstances of the tenant are considered or because it is disproportionate to the gravity of the alleged breach.
In all of these examples, the provision of reasons and a right of review would assist in ensuring that a fair, just and transparent decision-making process had taken place.
Eighteen months ago, the Tenants’ Union of Tasmania became aware of a change in Housing Tasmania practice when five tenants facing eviction contacted us. Instead of informing these tenants that they were being evicted because they had breached their lease agreement, which would automatically have triggered an explanation of the alleged breach as well as opportunity for review, Housing Tasmania wrote that the fixed-term lease was ending.
Whilst in law both private and public landlords may evict tenants at the end of fixed-term leases, Housing Tasmania’s policies mandate that its tenants will only be evicted because they have breached their lease agreements. Why? Because as Housing Tasmania’s own policies provide, “losing the right to live in public housing may have negative impacts on the individual’s or family’s health and well-being…For this reason, eviction from public housing will only be considered as an option where a serious breach has occurred”.
In other words, it seems Housing Tasmania is acting contrary to its own policies.
The Tenants’ Union made repeated but unsuccessful attempts to get Housing Tasmania to adhere to its own policies. On behalf of one of the affected tenants we then lodged an application with the Supreme Court of Tasmania arguing that the decision to evict was a breach of the rules of natural justice, namely that reasons be provided and a right of review afforded.
With no requirement to consider human rights implications, the Supreme Court found that Housing Tasmania, despite its objectives and purported adherence to policies and procedures, were to be treated no differently in law to other landlords, and therefore did not have to provide reasons or a right of review before seeking to evict its tenants. The Supreme Court did however express some sympathy for the tenant’s plight, noting that she was dependent on a sole parent pension, could not afford to move into the private rental market and eviction may result in her and her three young children becoming homeless.
On appeal, the Full Court of the Supreme Court reaffirmed the decision at first instance that Housing Tasmania was acting lawfully when it sought to evict its tenants.
With the Tasmanian courts not obliged to take the human rights implications of government decision-making into account, the Tenants’ Union has taken the very serious step of writing to the United Nations Special Rapporteur on Adequate Housing calling for an investigation of alleged breaches by Housing Tasmania of Australia’s international human rights obligations.
Article 11 of the International Covenant on Economic, Social and Cultural Rights and article 17(1) of the International Covenant on Civil and Political Rights provide that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence”.
The United Nations Committee on Economic, Social and Cultural Rights has clarified that forced or arbitrary evictions will be unlawful, observing that “appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognised in both the International Covenants on Human Rights… the procedural protections which should be applied in relation to forced evictions include an opportunity for genuine consultation with those affected [and the] provision of legal remedies”.
We call on the Human Services Minister, Ms Cassy O’Connor to step in and require Housing Tasmania to make decisions that are both fair and transparent. A failure to do so may well see the perpetuation of a vicious cycle in which tenants, treated unjustly, unreasonably or harshly and unable to afford homes in the private rental market, are required to be housed in emergency accommodation whilst waiting to be re-housed in public or community housing.
Benedict Bartl is a solicitor with the Tenants’ Union of Tasmania.