Eviction in times of crisis: welcome to the void

By Chris Povey | 09 Sep 13
Where I am, Destiny Deacon. Photo by Mila Robles.

This article is a part of our August focus on Homelessness in Australia – you can access more content from this issue here

By Chris Povey

When Maria* called she was at serious risk of eviction for not paying her rent.

But finding the rent was only part of a complex web of personal and legal issues facing Maria and her three kids. The family tried staying in their public housing rental premises, but threats from an ex-partner and break-ins meant they didn’t feel safe. She reported these incidents but the under-resourced police in her local area didn’t show for hours. Then she got an intervention order and the breaches weren’t followed up.

For Maria, as for people living in poverty, eviction has a clear and unambiguous relationship with homelessness.

So Maria started moving the family around. Sometimes she stayed with friends and sometimes she stumped up for a motel for her and the kids. Her mental health started to disintegrate. Her kids were out of school and started playing up. Her Centrelink payments were cancelled. She stopped paying rent.

Sadly, in response to this crisis, Maria and her children were not given support to remain in their home. Further arguments about the impact of serious and pervasive domestic violence fell on deaf ears and her landlord continued pushing for eviction.

For Maria, as for people living in poverty, eviction has a clear and unambiguous relationship with homelessness.

Eviction means confronting Australia’s widespread housing crisis. There are multiple dimensions of our national housing disaster including a chronic shortage of affordable housing; rocketing housing costs; and over 36,000 people who wait for a public housing system on the verge of collapse. In this context it’s unsurprising that more than half of the people accessing specialist homelessness services need accommodation-related assistance. Further, it’s difficult to understand the reasoning behind the decision to cut the funding of the Social Housing Advocacy and Support Program which works with households at risk of homelessness.

Among other things, we need to put the brake on evictions.

Currently we pretty much ignore the personal circumstances of tenants when making decisions about eviction. Rachel* is a good example of where things are going wrong.  Having spent over half of her life in prison, Rachel struggled with substance dependence and mental illness and these issues impacted her ability to keep up with her rent. Ultimately she wound up $2000 in arrears. The landlord, a community housing provider, accepted that eviction would result in homelessness but explained to the Tribunal it could not carry the financial loss.  Rachel’s offer of $400 and a payment plan to resolve the arrears was rejected by the Tribunal and she was evicted. Homeless again.

Tenancy arrears matters are one of the rare eviction proceedings in which it is possible for a tenant to resist eviction where satisfactory arrangements can be made to avoid financial loss to the landlord (or rooming house owner). But in most eviction matters, the personal circumstances of tenants are irrelevant under the Residential Tenancies Act 1997 and if the grounds for eviction are proved – you’re out.

This wasn’t always the case. For a brief period the Charter of Human Rights and Responsibilities Act (the Charter) provided a valuable pathway for advocates to raise and argue the personal circumstances of tenants. In Homeground v Mohamed, for example, the Charter enabled vulnerable tenants to raise their personal circumstances in response to “no reason” eviction notices. In such decisions the Victorian Civil and Administrative Tribunal (VCAT) grappled with the task of balancing the rights of tenants and landlords in a practical and common sense manner.

With respect, it’s time to seriously rethink the notion that evicting people should be quick and efficient.

The protection of housing rights took another step forward with the VCAT decision of Justice Bell in the Director of Housing v Sudi which concerned a notice to vacate issued by the Director of Housing to Warfa Sudi (Sudi) and his three year old son. Sudi had lived at the premises, on and off, for almost 10 years, but he wasn’t the listed tenant and when his mother died, both he and his three year old son faced eviction.

The ‘VCAT Sudi’ judgment is remarkable for the way in which Justice Bell defends the importance of “home” and housing rights. The decision opens with the punchy comment that “[e]victing people living in public housing is a severe infringement of their human rights” and that such activity is unlawful, unless justified. Later Justice Bell makes comments worth repeating in full:

The rights to privacy, family, home and correspondence in section 13 (a) are of fundamental importance to the scheme of the Charter. Their purpose is to protect and enhance the liberty of the person – the existence, autonomy, security and wellbeing of every individual in their own private sphere. The rights ensure people can develop individually, socially and spiritually in that sphere, which provides the civil foundation for their effective participation in democratic society. They protect those attributes which are private to all individuals, that domain which may be called their home, the intimate relations which they have in their family and that capacity for communication (by whatever means) with others which is their correspondence, each of which is indispensable for their personal actuation, freedom of expression and social engagement

Such striking rhetoric about the primacy of “home” can be starkly contrasted with the decision of the Victorian Court of Appeal in relation to Sudi.  In addition to slamming the door on any prospect of VCAT jurisdiction to consider human rights compliance in eviction proceedings, it’s notable that the judgement of Justice Weinberg makes particular reference to the need for tenancy matters to be dealt with ‘quickly, efficiently and sensibly’ and warns against interference with the process laid down for eviction. Such reasoning was echoed only recently in the decision of Commissioner for Social Housing in the ACT & Massey which held that human rights compliance was also out of bounds for Tribunal decision makers in the ACT.

With respect, it’s time to seriously rethink the notion that evicting people should be quick and efficient.

Most people know that five years ago Kevin Rudd announced his bold plan to halve homelessness. It’s less well known, however, that Rudd’s headlines in relation to targets were accompanied by detail about how to achieve these targets in the White Paper on homelessness.

The White Paper established that we need to prevent homelessness. We need to keep women at risk of domestic violence secure in their own home, we need to increase community and public housing stock, and improve tenancy advice and support. We also need to prevent homelessness when people leave hospitals, mental health facilities, drug and alcohol services and statutory care.

All good ideas, but after five years the numbers provide a damning assessment of our progress. In 2006 the Australian Bureau of Statistics census indicated that there were 89,728 people experiencing homelessness and by 2011 this number had jumped by 17 per cent to 105,237. Further, homelessness increased by 20 per cent or more in New South Wales, Victoria, Tasmania and the Australian Capital Territory.

It’s all a bit depressing: there isn’t enough affordable or social housing, services have been cut, government doesn’t have enough money to fix the problem and our homelessness stats have jumped. But now is not the time to say, “Oh, Rudd got it wrong.” Now more than ever, we need to affirm and work towards the targets. In order to prevent homelessness, we need to make eviction decisions carefully and with all the facts. And while we wait (and wait, and wait) for more affordable housing and more social housing, we need to make sure we aren’t evicting people into the great Australian affordable housing void.

* Not her real name