Letter sent to UN regarding arbitrary eviction of public housing tenants

3 November 2013

Ms Raquel Rolnik
United Nations Special Rapporteur on Adequate Housing
c/o Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland

Dear Ms Rolnik,

Re: Urgent appeal regarding imminent and arbitrary eviction of public housing tenants

This urgent appeal is respectfully submitted to the United Nations Special Rapporteur on adequate housing regarding the forced eviction of Ms Angela King and four other public housing tenants (‘the Complainants’) from their homes in Tasmania, Australia. In the view of the signatories, the evictions amount to a violation of article 17(1) of the International Covenant on Civil and Political Rights and article 11 of the International Covenant on Economic, Social and Cultural Rights.

We respectfully request that you send a communication to the Tasmanian government in relation to the allegations set forth herein. If the allegations are confirmed we request that you send an urgent appeal to the Australian government requesting that laws are enacted recognising the human rights implications of eviction and that the Tasmanian government ensure that the complainants are provided with an opportunity to seek reasons for their eviction and be provided with a right of review.

BACKGROUND
In April-May 2012 five public housing tenants who were being evicted by the Governmentís public housing provider, Housing Tasmania, contacted the Tenantsí Union of Tasmania. All of them expressed concern that they were being evicted without reason and with no right of review.

On behalf of Ms Angela King, one of the affected tenants, the Tenants’ Union of Tasmania filed an application in the Supreme Court of Tasmania arguing that Housing Tasmania had to afford its tenants procedural fairness and that arbitrary eviction was unlawful given the special relationship between the parties.

– Angela King’s Tenancy and Eviction History
Angela King has been a tenant of the Government’s public housing provider, Housing Tasmania for around nine years. Approximately eight years ago Ms King and her four-year-old daughter moved into a two-bedroom unit in Glenorchy owned by Housing Tasmania. Over the following years Ms King gave birth to another two children and in 2009 she was transferred to a Housing Tasmania property in nearby Lutana as her family had outgrown the Glenorchy property.

In the three-and-a-half years that Ms King lived at the Lutana property there were times when Ms King had to call the police, either because of arguments with her ex-partner or because of neighbourhood disputes. In November 2011 Ms King was asked to attend a meeting with Housing Tasmania. At the meeting a tenancy team leader with Housing Tasmania asked Ms King to sign an ‘Acceptable Behaviour Contract’ which stated that Ms King was to act in a reasonable way towards her residence and her neighbours and not to act in a way which causes a nuisance, disturbance or annoyance to anyone else and that she was responsible for any act or omission by persons that she allowed onto the property. The meeting with Housing Tasmania in November 2011 was Ms King’s only discussion with Housing Tasmania regarding her behaviour as a tenant at the Lutana property.

Ms King entered into a ‘fixed-term’ lease agreement with Housing Tasmania on 6 November 2009. The period of the lease was from 6 November 2009 until 6 February 2010. On each of 28 January 2010, 19 August 2010, 27 January 2011 and 15 February 2012 Ms King entered into an ‘Agreement to extend Lease term’. Normally, Ms King would be sent an ‘Agreement to extend Lease term’ about one month before the expiration of the old one. She would then sign it and send it back to Housing Tasmania.

On 20 April 2012 Ms King was served with an eviction notice, entitled a ‘Notice to Vacate’. The Notice to Vacate stated that it was being served on Ms King because her lease was due to expire on 6 May 2012. It also stated that ‘the lease will not be extended or renewed’ and gave no reason as to why. At no stage prior to this was Ms King informed that her lease would not be extended or renewed. Ms King was also never told why she was not complying with the Acceptable Behaviour Contract nor informed of any complaints made against her.

Ms King rang Housing Tasmania on or around 20 April 2012 asking why she was being evicted. She was informed that ‘the tenancy has not worked out’. Ms King asked if the decision to evict her could be reviewed by an internal review board, called the Housing Review Committee. She was informed that the decision to evict her could not be reviewed because the Housing Review Committee was only available to tenants who had breached their lease agreements.

Ms King believes that Housing Tasmania are seeking to evict her because of the arguments she has had with her ex-partner and her neighbours. However, because they only told her verbally that ‘the tenancy has not worked out’ she does not know the reason or reasons and cannot find out or challenge them.

Ms King believed and expected that her lease would be extended or renewed if she complied with the Acceptable Behaviour Contract and did not breach the terms of the lease. Ms King believed and expected that if she failed to comply with the Acceptable Behaviour Contract or breached the terms of the lease that she would be notified by Housing Tasmania and would be able to have any wrong decision reviewed by the Housing Review Committee.

Ms King is currently in receipt of a sole parent pension. She is paying subsidised rent and is very concerned that she will be unable to afford a house in the private rental market. Despite numerous requests by Ms King, and her solicitor, Housing Tasmania refused to provide reasons as to why her lease would not be extended or renewed or given an opportunity for review of that decision.

– Angela King’s Legal Proceedings
With Housing Tasmania continuing to seek eviction against Ms King and the other complainants, the Tenants’ Union of Tasmania lodged proceedings in the Supreme Court of Tasmania arguing that the decision to evict was a breach of the rules of natural justice as provided for in the Judicial Review Act 2000 (Tas). With no requirement to consider human rights implications in either Tasmanian or Australian law, the Supreme Court found that Housing Tasmania had complied with the law in evicting Ms King but expressed some sympathy for her plight, noting:

Some people might see this result as most unfair. According to the evidence relied on by counsel for the applicant, she is a single mother with three young children; she is dependent on a pension; she cannot afford to move into the private rental market; and eviction from her Housing Tasmania home would result in her and her three children becoming homeless. There is no suggestion that she has breached any term of her lease, nor that the premises have been damaged during her occupancy of them. Despite persistent enquiries, no explanation has been given for the decisions that she sought to challenge. Housing Tasmania has procedures whereby, whenever a decision is made to terminate a tenant’s lease because of non-compliance with a requirement of the lease, that decision can be reviewed in accordance with internal appeal processes. No such rights of review are available to the applicant because her lease has expired, not been terminated. The reasons for the impugned decisions were not disclosed during these proceedings. As counsel for the Director rightly submitted, the Court has no jurisdiction to review those decisions under the JR [Judicial Review] Act.

To summarise the decision, the Supreme Court held that whilst the Homes Act 1935 granted the Director of Housing the power to ‘let any dwelling-house on such terms and conditions as he [or she] sees fit’ the ‘decision’ to arbitrarily evict Angela King did not arise under the Homes Act 1935 but rather under the Residential Tenancy Act 1997. As a result, the relationship between the parties was merely landlord and tenant and the Director of Housing could therefore evict tenants under the Residential Tenancy Act 1997 like every other landlord. In other words, Housing Tasmania did not have to provide reasons or a right of review before seeking to evict its tenants.

On appeal, the Full Court of the Supreme Court reaffirmed the decision at first instance that Housing Tasmania was acting lawfully when it arbitrarily sought to evict its tenants but again expressed concern at the process engaged in by Housing Tasmania:

It is common ground that the stated procedures were not complied with. The evidence shows that the appellant was not told before receipt of the notice to vacate that the lease would not be extended or renewed. She was not advised that she was in breach of “acceptable conduct standards” to which she had subscribed, and was not told of any complaints against her. When the appellant asked of Housing Tasmania why it was that she was being evicted, she was told that “the tenancy has not worked out”. She was also told that a review was not available because that process was only available to tenants who had breached their lease. Reasons later requested on her behalf were not provided. The respondent did not provide any explanation to the primary judge as to why the decisions were made, or the published procedures not followed.

Despite the Full Court of the Supreme Courtís concerns about the process adopted by Housing Tasmania, Ms Angela King and the other complainants may be evicted any day after 1 November 2013.

IMMINENT HUMAN RIGHTS VIOLATIONS
In the view of the signatories, Housing Tasmania’s eviction process is a violation of article 17(1) of the International Covenant on Civil and Political Rights and article 11 of the International Covenant on Economic, Social and Cultural Rights. We strongly believe that human rights considerations must be taken into account in both the provision of security of tenure and in ensuring that natural justice is assured. As General Comment 4 of the Committee on Economic, Social and Cultural Rights (CESCR) on the right to adequate housing reaffirms: “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats”.

In the later General Comment No 7 the CESCR provided further clarification on ‘forced evictions’ by defining it as ‘the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’. Importantly, the General Comment went on to list the legal protections that it believed were necessary to ensure that evictions were not arbitrary, stating:

[a]ppropriate 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 recognized in both the International Covenants on Human Rights.
…
The Committee considers that the procedural protections which should be applied in relation to forced evictions include:
(a) an opportunity for genuine consultation with those affected;
…
(g) provision of legal remedies;
…

This view is strengthened by comments made in 2006 by Mr Miloon Kothari, the special rapporteur on adequate housing during a country visit to Australia. In his final report, he observed:

Forced evictions are considered to be a gross violation of a wide range of human rights under international law and are evidence of a systematic disregard for recognized human rights standards. Increasingly, in jurisdictions where the right to adequate housing is justiciable, domestic courts are finding the prohibition of forced evictions to be an integral element of this right. Evictions push people into homelessness, inadequate housing conditions and poverty, and affect almost exclusively the poorest, socially and economically most vulnerable and marginalized sectors of society.

The special rapporteur went on to note that “[n]o laws exist in Australia setting forced evictions in accordance with international human rights standards”.

Whilst courts and tribunals in both Victoria and the Australian Capital Territory have the ability to take human rights considerations into account, no other State or Territory in Australia, including Tasmania provides similar safeguards meaning that tenants are lawfully able to be arbitrarily evicted. As Justice Bell of the Victorian Supreme Court recently concluded in a speech entitled ‘Protecting public housing tenants in Australia from forced evictions’:

As regards the forced eviction of public housing tenants, the administration of public rental housing in the states and territories is premised on the private law categorisation of the dwelling as the property of the state and the relationship of the parties as landlord and tenant. These legal categories do not take proper account of the human rights which are engaged. In human rights terms, the dwelling is not just property but a home. The public housing provider is not just a landlord but a public authority with human rights obligations. The tenant is not just a renter but a person of inherent value and worth, of potential and capability and a bearer of human rights.

REQUEST FOR URGENT ACTION
The eviction of Ms Angela King and the other complainants, if allowed to proceed, will mean that Housing Tasmania will continue to evict tenants at the end of a fixed-term lease without any proper consideration of human rights implications. In light of this situation, the signatories to this letter formally request that in your capacity as United Nations Special Rapporteur on Adequate Housing, and in accordance with the terms of your mandate, take all appropriate measures to investigate this urgent communication.

In particular, we request that you take urgent action with a view to ensuring that:

• the Tasmania Government desist from evicting the complainants in potential violation of article 17(1) of the International Covenant on Civil and Political Rights and article 11 of the International Covenant on Economic, Social and Cultural Rights; and
• that the complainants be permitted and facilitated to seek reasons for their eviction and be provided with a right of review.
In order to remedy the systemic issues that have led to the violations outlined above, we request that the Special Rapporteur recommend that Australia take immediate steps to:

• enact laws that recognise the human rights implications of eviction, including requiring reasons to be provided and adequate review to be afforded.
Signed by

Meredith Barton, Principal Solicitor Tenants’ Union of Tasmania
Magnus Hammar, Secretary General, International Union of Tenants
Ken Hardaker, Chief Executive Officer, Advocacy Tasmania
Chris Young, Convenor, Community Legal Centres Tasmania
Julia Hall, Executive Director, National Association of Community Legal Centres

cc:
George Brandis QC, Commonwealth Attorney General
Brian Wightman MP, Tasmanian Attorney-General
Cassy O’Connor MP, Minister for Human Services
Peter White, Director of Housing