Body paragraphs and what syllabus themes and challenges they work for:
NCAT
➢ The role of the law in encouraging cooperation and resolving conflict in regard to
shelter.
➢ Issues of compliance and non compliance
Rental Bond board NSW
➢ The role of the law in encouraging cooperation and resolving conflict in regard to
shelter.
➢ Issues of compliance and non compliance
Home Building service NSW
➢ Issues of compliance and non compliance
Aged care
➢ Law reform
➢ laws relating to shelter as a reflection of changing values and ethical standards
➢ Legal and non-legal responses
Rights of tenants
➢ Law reform
➢ laws relating to shelter as a reflection of changing values and ethical standards
➢ Legal and non-legal responses
Real estate agents
➢ Law reform
➢ laws relating to shelter as a reflection of changing values and ethical standards
Homelessness
➢ laws relating to shelter as a reflection of changing values and ethical standards
➢ Legal and non-legal responses
Discrimination
➢ The role of the law in encouraging cooperation and resolving conflict in regard to
shelter.
➢ Law reform
➢ Legal and non-legal responses
Affordability
➢ laws relating to shelter as a reflection of changing values and ethical standards
➢ Legal and non-legal responses
Social housing
➢ The role of the law in encouraging cooperation and resolving conflict in regard to
shelter.
➢ Issues of compliance and non compliance
➢ Law reform
Affordability
Affordability is a critical component of the affordability, social housing and homelessness
triad and is defined as “housing which is appropriate to the needs of low to moderate
income households (Housing NSW); typically referring to the relationship between
housing expenditure and household incomes. The great extent of the affordability crisis is
modelled by the average household in Sydney paying up to 29% of their income on
rent (rental affordability index, 2017), whereby definition spending 30% of a
household's income on housing costs means a household is in “housing stress”. This
extreme affordability crisis that has seen the average property price in sydney hit $1.3
million, has hindered vulnerable people and first home buyers from the provision of
affordable shelter. Legal responses have reacted to the affordability crisis to a great extent,
whereby the government has planned to establish the Family Home Guarantee, an initiative
that will give 10,000 guarantees over four years to single parents, allowing them a 2%
deposit on a mortgage, with the rest subsidised by the government. This equitable
response aims to reduce the “necessary discrimination” on the grounds of financial
capability, that banks use to avoid lending mortages to single parents, who typically are of
lower financial capacity. By paying 2%, rather than a 20% deposit, single parents are
enabled to secure a mortgage that would allow them to purchase shelter and enter the
competitive housing market, making this a promising initiative in achieving affordable
housing. However, the limited accessibility of this initiative being 10,000 people across 4
years, means this solution is an inadequate long term approach that doesn’t extend to a
large enough population of people to address affordability issues that are magnified by
discrimination. Similarly, the First Home Super Saver Scheme (FHSS) aimed at
empowering first home buyers to enter the competitive market is a legal response that has
addressed affordability to some extent. It allows first home buyers to make voluntary
contributions to their super, take advantage of paying lower tax on this money, and then
withdraw these funds to help buy their first home. This was reformed to allow participants to
save more money through their super accounts, fron $30,000 to $50,000 from July 2022.
However, despites it’s promising aspects, many experts such as Dr Katrina Raynor, a
research fellow at the University of Melbourne, says the change to the FHSSS is
"tinkering around the edges" and won't help housing affordability from an equity
perspective. Thus, overall legal responses holistically have been mildly effective in
addressing affordability by only remedying short term issues, rather than working towards
long term plans.
Discrimination
Discrimination is a pressing issue within the hosuing market, where many people are
inequitably limited to their opportunity of housing by their characteristics, such as gender,
age etc. The Anti-Discrimination Act 1977 is the overarching peice of legislation that outlaws
the unjust discrimination of people on the basis of their characteristics, however this is
challenged largely in relation to shleter by “necessary discrimination”. Legal responses have
reacted to the way in which financial discrimination in particular as “necessary
discrimination”, has largley impacted on signle parnet and single income families to a great
extent through the Family Home Guarantee; which is an initiative that will give 10,000
guarantees over four years to single parents, allowing them a 2% deposit on a
mortgage, with the rest subsidised by the government. This equitable response aims to
reduce the “necessary discrimination” on the grounds of financial capability, that banks use
to avoid lending mortages to single parents, who typically are of lower financial capacity. By
paying 2%, rather than a 20% deposit, single parents are enabled to secure a mortgage
that would allow them to purchase shelter and enter the competitive housing market, making
this a promising initiative in addressing discrimination in housing. However, the limited
accessibility of this initiative being 10,000 people across 4 years, means this solution is an
inadequate long term approach that doesn’t extend to a large enough population of people to
address affordability issues that are magnified by discrimination. Anti Social Behaviour
Agreements (ABAs), which were introduced in 2001 are examples of legal responses that
model the discriminatory nature of the law that has unfairly targeted a group, solely on their
basis of residence. ABAs allow social housing tenants to be first provided with a warning,
however if behaviour that conflicts with their tenancy obligations continues, the Housing
Department NSW can evict the tenant. ‘Antisocial behaviour’ can include yelling,
aggression, disturbance, as well as other actions which all conflict with the upholding of their
obligations as social housing tenants; obligations that no other residential tenants, only
social housing tenants are bound by. Thus...
Discrimination x Social Hosuing
Discrimination is a pressing issue within the hosuing market, where many people are
inequitably limited to their opportunity of housing by their characteristics, such as gender,
age etc. The Anti-Discrimination Act 1977 is the overarching peice of legislation that
outlaws the unjust discrimination of people on the basis of their characteristics, however this
is challenged largely in relation to shleter by “necessary discrimination”. Legal responses
have reacted to the way in which financial discrimination in particular as “necessary
discrimination”, has largley impacted on signle parnet and single income families to a great
extent through the Family Home Guarantee; which is an initiative that will give 10,000
guarantees over four years to single parents, allowing them a 2% deposit on a
mortgage, with the rest subsidised by the government. This equitable response aims to
reduce the “necessary discrimination” on the grounds of financial capability, that banks use
to avoid lending mortages to single parents, who typically are of lower financial capacity. By
paying 2%, rather than a 20% deposit, single parents are enabled to secure a mortgage
that would allow them to purchase shelter and enter the competitive housing market, making
this a promising initiative in addressing discrimination in housing. However, the limited
accessibility of this initiative being 10,000 people across 4 years, means this solution is an
inadequate long term approach that doesn’t extend to a large enough population of people to
address affordability issues that are magnified by discrimination. Anti Social Behaviour
Agreements (ABAs), which were introduced in 2001 are examples of legal responses that
model the discriminatory nature of the law that has unfairly targeted a group, solely on their
basis of residence. ABAs allow social housing tenants to be first provided with a warning,
however if behaviour that conflicts with their tenancy obligations continues, the Housing
Department NSW can evict the tenant. ‘Antisocial behavior’ can include yelling, aggression,
disturbance, as well as other actions which all conflict with the upholding of their obligations
as social housing tenants; obligations that no other residential tenants, only social housing
tenants are bound by. Thus...
Homelessness:
The definition of homelessnes is a dynamic ideology that has shifted over time, however it’s
prevalence has remained a pressing issue within shelter. Australian federal law defines
homelessness as “inadequate access to safe and secure housing”, where the 2016 Census
found that there were 37,715 people in NSW who were classified as homeless, showing an
increase of 37% from 2011. Homelessness catalyses a slippery slope in the rescindment of a
multitude of human rights, such as the right to privacy, education, personal safety, the right to
vote etc. This issue magnifies the discrimination within the hosuing market, as many population
subgroups such as woemn, indigenous people and children/young people are disproportionately
affected by homelessnes, highlighting the vast ineffectiveness of legal responses. The primary
homelessness legislation, (part 7) of the Housing Act 1996 provides the statutory under-pinning
actions to prevent homelessness and provide assistance to people threatened with, or
experiencing homelessness. However, the Australian government has also been urged to
consider a ‘new duty to assist’ law, which would force the government to help homeless people
find accommodation, amidst warning that the rate of homelessness is spiralling out of control
and funding is drying up, due to the ineffectiveness of their preventative strategies to address
homelessnes. In 2008, the federal government released its white paper on homelessness, The
Road Home: A National Approach to Reducing Homelessness and committed to a target of
halving the number of people experiencing homelessness by 2020. The paper set interim targets
of reducing this number by 20% by 2013, however, this target was not met, as total
homelessness had actually increased by this time. The Homelessness (Consequential
Amendments) Bill 2013 was another legal response that models the law’s ineffectiveness.
Firstly, it repeals the Supported Accommodation Assistance Act 1994 to make way for the
proposed Homelessness Act 2013. Secondly, it repeals the definition of homelessness person in
the Commonwealth Electoral Act 1918 and substitutes a new definition that is in line with that
contained in the Homelessness Bill 2013. This act once again introduced legal responses,
already attempted within the Housing act 1996, despite it’s statistically proven inefficiency, when
homelessness numbers rose despite their legal efforts. It also aimed to “outline the
Commonwealth's recognition of persons who are homeless or at risk of homelessness and the
general means through which it intends to reduce homelessness and support people who are
homeless or at risk of homelessness”, where it’s lack of specificity and enforceability simply
redefined the definition of homelessness, rather than outline specific strategies to alleviate it’s
prevalence within Australia. Thus, the scarcity of legal responses that outline specific measures
to address homelessness have been largely ineffective and dually, overburdened non-legal
responses.
Non-legal responses for affordability/social housing/homelessness
The National Housing and Homelessness agreement 2018 (NHHA) models the high level
of effectiveness that non-legal responses uphold in addressing the underlying issues of the
__contemp issue___, crisis. The NHHA is created subject to the provisions of the Federal
Financial Relations Act 2009 and It replaced the ten-year National Affordable Housing
Agreement to address the underlying causes of the social housing, homelessness and
affordability triad. It is essentially a funding agreement between state and federal
governments to ensure everyone has access to affordable and adequate shelter by
producing long term solutions to __contemp issue___, by particularly prioritising vulnerable
population subgroups (eg families of DV, children and young people, people experiencing
repeat homelessness ATSI etc). The NHHA will provide $4.6 billion in Commonwealth
funding to the States and Territories over the next three years, including $375 million for
homelessness services which States will be required to match. Whereby, it’s success will
be measured by total number of dwellings relative to the population, as well as the stock of
affordable rental housing relative to the population (affordability) and the stock of social
housing dwellings relative to the target population for social housing (social housing) etc. It
also improves accountability, as states and territories are required to have publicly available
housing and homelessness strategies, where each state will provide to the relevant
Commonwealth Minister (or a relevant Commonwealth official) an annual statement of
assurance that it has satisfied the requirements set out in the clause. This enforceability
component of the non-legal response makes it a highly effective long term solution to the
underlying instabilities in the housing market. Thus ...
Non-legal responses for discrimination:
Non-legal responses to address the highly prevelant issue of discrimination within the shelter
market have been mostly effective in ensuring compliance with the Anti-discrimination act
1977 . The Anti-Discrimination board of NSW (ADNSW) is a repsonse that models the
high effectiveness of non-legal measures in providing enforceable, resource efficient and
easily accessible solutions for the remedificiation of discriminations. This independent
statutory body is the NSW state government body that administers the anti-discrimination act
throguh the reconcilliation of complaints, answering enquiries whilst raising and promoting
awareness arounf the impacts of discriminationatory actions. Through their specialised work
with niche population subgroups, who are often subject to discrimination as minorities, such
as ATSI people, they have modelled a high level of competetnce and efficiency. Complaints
from people who identified as Aboriginal or Torres Strait Islander represent 5.8% of all
complaints received this year. The most common type of discrimination raised was race
discrimination (with 55% of race complaints made by Aboriginal and Torres Strait
Islander people.) Their specialised services for Indigenous people as well as their
partnership with Legal AId NSW since 2016 ensure easily accessible justice for victims of
discrimination to a significiant extent. Their high level of effectiveness is similarly modelled
by the case study of Janine* (name changed for privacy reasons), who was refused from
rental accommodation after the real estate agent became aware of her homosexual
orientation. Once she had lodged a complaint with the ADNSW, ADNSW contacted the
agent and explained that discriminating against Janine because of her lesbianism was
against the Anti-Discrimination Act. The complaint was resolved when the agent offered
Janine alternative accommodation and agreed to review all the official policies for possible
discriminatory practices. Henceforth, exhibiting their high level of effectiveness, however
with, Approximately one-third of all enquiries not being covered by the Act (enquiries
about types of discrimination and public areas not protected by the Act), more legal
protection is needed to allow non-legal responses a higher level of effectiveness and
capability to safeguard peoples right to not be discriminate against, particularly within the
hosuing market.
Introduction
Shelter is a universal human right, defined under the Universal Declaration of Human
rights 1948, article 25 and is an essential human right that safeguards the right of an
individual to enjoy other human rights.
The role of the law in encouraging cooperation and resolving conflict in
regard to shelter.
NCAT
The law encourages cooperation and the resolution of conflict to a moderate extent in
reference to tenancy agreements. The Residential Tenancies Act 2010 is the piece of
legislation that clearly states the obligations of landlords, as well as gives the NSW Civil and
Administrative Tribunal (NCAT) jurisdiction to hear and settle disputes about residential
tenancies under the consumer and commercial division under the Civil and Administrative
Tribunal Act 2013 (NSW). NCAT is highly effective in resolving conflict, with most matters
solved within 21 days and it also allows disputes to evade the court system; saving both time
and money. For some residential disputes, such as those in strata schemes, mediation is
compulsory prior to applying to NCAT, in order to promote cooperation between parties and
endorse informal conflict resolution. NCAT can make enforceable decisions to resolve
conflict under the relevant legislation, such as the Strata Schemes Management Act 2015
(NSW) for those in strata schemes.The NCAT is extremely effective in relation to the
response of disputes heard, with a total 94.7% clearance ratio of all issues heard, however a
legal loophole means the tribunal lacks enforceability where one party is interstate. “NSW
tenancy agreements are potentially unenforceable against interstate landlords (ABC
NEWS)” where “thousands of renters may discover their tenancy agreements are
unenforceable if their landlord lives interstate.” The legal loophole emerged after the
Court of Appeal declared that NCAT, which handles a range of small civil disputes, has no
jurisdiction if one party lives in another state. This is exemplified in the Anna Jacobs and
Sefton Darby Case, where the couple were forced to move out of their rented home due to
toxic mould, however, when they took their landlord to court, they were unable to seek
compensation as the “landlords agent announced that the landlord wanted the case
dismissed as the tribunal is unable to enforce any law as he lived in South Australia”.
This legal loophole means many tenants are unprotected and cannot use NCAT to resolve
disputes or promote cooperation, therefore the NCAT encourages cooperation and
resolution to a moderate extent.
RENTAL BOND BOARD
The law has encouraged cooperation and resolved conflict to a great extent in reference to
bond money in tenancy agreements. The Landlord and Tenant (rental Boards) Act 1997
(NSW), was introduced to mandate the issues surrounding bond money and prevent
conflicts arising from it’s misuse. The Rental Bond Board is the state set up independent
custodian of rental bonds paid by tenants to landlords for residential tenancies, where all
bond money must be lodged and registered. This independent body safeguards the bond
money which is reclaimed at the cessation of a tenancy. This prevents disputes, whereby the
landlord may lose or not be able to repay the bond in full to the tenant and also prevents the
landlord from choosing to keep the bond money on arbitrary claims that are legally
unjustified; protecting the rights of the tenant. The rental bond board and the legislation that
underpins it is highly effective in preventing conflict, with 98% of the cases not requiring any
form of dispute resolution and similarly, there was overall satisfaction with 70% of tenants
promoting the service, exemplifying the great extent it protects the rights of those seeking
shelter. This procedure also promotes cooperation between the tenant and the landlord by
encouraging the tenant to care for a rental property in order to retain their bond money,
whilst also safeguarding the right of the landlord to have their property left in an adequate
state. In the Lin v Cornish (2015) case it was decided by NCAT that the landlord was
entitled to $1237 dollars of the rental bond to pay for the “extensive repairs required for the
premises” as a result of the tenant’s negligence. This case highlights the way in which the
law has procedures in place as a safety net to resolve conflict if cooperation between the
tenant and landlord falls through. Thus highlighting the way that the law has both
cooperation incentives and conflict preventing and resolving measures in place that work
coherently to a great extent.
SOCIAL HOUSING
The law promotes cooperation of those in social housing with laws and expectations to a
moderate extent. Housing NSW governs social housing under the Housing Act 2001
(NSW), which states outs the rights and obligations of landlords and tenants, providing them
with similar rights to residential landlords. The law promotes cooperation of tenants with
these expectations through the introduced Anti-social Behaviour Agreements (ABA) in
2001. This allows tenants to be first provided with a warning, however if behaviour that
conflicts with their tenancy obligations continues, the Housing Department NSW can evict
the tenant. ‘Antisocial behavior’ can include yelling, aggression, disturbance, as well as other
actions which all conflict with the upholding of their obligations as social housing tenants.
However, as this system seems to ensure cooperation between social housing tenants and
their behavioural expectations, the inadequacy of ABAs was highlighted by a smh article,
“Good tenants forced out for christmas” (2014). This article explored the case of Mrs T;
a neighbour to a social housing tenant, who moved out after many years of living in her
home, as the ABAs she lodged against her neighbour were not addressed by Housing NSW.
This highlights that while the laws regarding social housing promote cooperation and provide
a complaints procedure for conflict resolution, it’s execution is not fully adequate. However,
the Department and housing v Ozen CTTT, offers a differening outcome, where the
conflict is resolved effectively. In this case, Mrs Ozen’s son was found to be in possession of
drugs within her social housing residency and resultantly, she was evicted. At a tribunal that
has now been replaced by NCAT, it was found that Mrs Ozen should be allowed to stay in
her social housing due to her unblemished record that showed her cooperation with her
obligations for 21 years. Hence, highlighting how the Housing Department (NSW) promotes
social housing residents to cooperate with their tenancy obligations and responsibilities and
offers mediums of conflict resolution to a moderate extent.
Issues of compliance and non compliance
HOME BUILDING SERVICE
The law has promoted compliance with laws to a moderate extent in relation to the building
and development of shelter. The Home Building Service is the arm of NSW Fair Trading
whose main function is to ensure compliance with the Home Building Act 1989 (NSW).
Under this Act, builders and tradespeople must have a licence to undertake residential
building work, including specialist tradespeople, such as plumbers and electricians. The Act
also sets up standards around competence, probity, contracts, statutory warranties and
home warranty insurance to protect people against incomplete or faulty work. This was in
response to many criticisms stating over the years that building contracts are too broad and
do not provide adequate protection for people building a home. The Jaxon Construction
Pty Ltd is a case that examples the effectiveness of the Home building service to ensure
compliance, who fined the company $5,000 for negligence after carrying out unauthorised
building works that deviated from the approved plans for the hotel development and the
Building Services Board also issued an additional $2,500 fine to the builder’s nominated
supervisor, for failing to properly manage and supervise the project. The investigators
employed under the Home Building service are also able to issue a rectification order or can
lodge a complaint to NCAT to have the complaint heard and determined, highlighting how
effective the Home Building Service is at ensuring compliance with legal building standards
and expectations. However the notorious Opal Tower case (2018) criticises the
effectiveness of the Home Building Service and similar organisations to ensure compliance
with construction laws. The residents of opal tower were evacuated after cracks in concrete
beams were located on the 36th floor, where property insiders who recently rented out their
apartments to other individuals have claimed a “great loss of income” as the market has
put a red mark in the building with “almost no buying, selling or new rentals of the 392
apartments in the tower”. The lack of compliance with building standards endangered
many people and has led to a multi-million dollar lawsuit with many losing money as a result
of its over 500 building defects that make the property inhabitable. Thus highlighting how
the Home Building Service has ensured compliance with the law to a moderate extent.
NCAT
The law encourages compliance between both landlord and tenants and the law to a
moderate extent in reference to tenancy agreements. The Residential Tenancies Act 2010
is the piece of legislation that clearly states the obligations of landlords, as well as gives the
NSW Civil and Administrative Tribunal (NCAT) jurisdiction to hear and settle
non-compliance disputes about residential tenancies under the consumer and commercial
division under the Civil and Administrative Tribunal Act 2013 (NSW). NCAT is highly
effective in resolving non-compliances with tenancy related laws in a time effective way, with
most matters solved within 21 days, it also allows disputes of non-compliance to evade the
court system; saving both time and money. For some residential disputes over compliance
with laws, such as those in strata schemes, mediation is compulsory prior to applying to
NCAT, in order to promote cooperation between parties and endorse informal conflict
resolution. NCAT can make enforceable decisions to resolve issues of non-compliances
under the relevant legislation, such as the Strata Schemes Management Act 2015 (NSW)
for those in strata schemes.The NCAT is extremely effective in relation to the response of
non-compliance disputes heard, with a total 94.7% clearance ratio of all issues heard,
however a legal loophole means the tribunal lacks enforceability where one party is
interstate. “NSW tenancy agreements are potentially unenforceable against interstate
landlords (ABC NEWS)” ,where “thousands of renters may discover their tenancy
agreements are unenforceable if their landlord lives interstate.” The legal loophole
emerged after the Court of Appeal declared that NCAT, which handles a range of small civil
disputes, has no jurisdiction if one party lives in another state. This is exemplified in the
Anna Jacobs and Sefton Darby Case, where the couple were forced to move out of their
rented home due to toxic mould, however, when they took their landlord to court, they were
unable to seek compensation as the “landlords agent announced that the landlord
wanted the case dismissed as the tribunal is unable to enforce any law as he lived in
South Australia”. This legal loophole means many tenants are unprotected and cannot use
NCAT to resolve disputes about non-compliance,if they’re landlord lives inter-state, therefore
the NCAT resolves issues of non-compliance to a moderate extent.
RENTAL BOND BOARD
The law has ensured compliance with the law to a great extent in reference to bond money
in tenancy agreements. The Rental Bond Board is the state set up independent custodian
of rental bonds paid by tenants to landlords for residential tenancies, where all bond money
must be lodged and registered and is set up by the Residential Tenancies Act 2010
(NSW). This independent body safeguards the bond money which is reclaimed at the
cessation of a tenancy to ensure compliance with the Landlord and Tenant (rental Boards)
Act 1997 (NSW), which was introduced to mandate the issues surrounding bond money.
The Rental Bond Board ensures compliance with the law and protects the rights of tenants,
by preventing instances whereby the landlord may lose or not be able to repay the bond in
full to the tenant and it also prevents the landlord from choosing to keep the bond money on
arbitrary claims that are legally unjustified. The rental bond board is highly effective in
ensuring compliance with rental bond money, with 98% of the cases not requiring any form
of dispute resolution and similarly, there was overall satisfaction with 70% of tenants
promoting the service, exemplifying the great extent it protects the rights of those seeking
shelter by ensuring landlords comply with bond related legislation and procedures. This
procedure also ensures the tenant complies with the Residential Tenancies Act 2010
(NSW), by encouraging the tenant to uphold their legal and moral obligation to care for a
rental property in order to retain their bond money, which safeguards the right of the landlord
to have their property left in an “adequate state”. This is exemplified in the Lin v Cornish
(2015) case where it was decided by NCAT that the landlord was entitled to $1237 dollars of
the rental bond to pay for the “extensive repairs required for the premises” as a result of the
tenant’s negligence. This case highlights the way that the law has procedures in place to
amend non-compliances with bond money as a safety net to protect an individual’s rights if
one party fails to comply with standards and expectations.Thus, highlighting the way that the
law promotes compliance with rental bond money to a great extent.
Law reform/ laws relating to shelter as a reflection of changing values
and ethical standards
AGED CARE FACILITIES
The law has reformed to a great extent in order to protect those elderly people seeking
shelter in retirement villages and aged care homes. Elderly people are some of the most
vulnerable people within the Australian population and the high demand for aged care
facilities in conjunction with their low supply, means many seeking shelter in a retirement
village are exploited and taken advantage of. With the nation expected to have 50% more
people 55+ by 2036, there is a substantial need for better protection of those seeking shelter
in these facilities. The aged care act 1997 is the overarching piece of legislation that covers
government funded aged care and outlines rules for funding and regulation. Each year, a
report on the operation of this act is reported on to the Australian parliament as an
introduced policy after the social backlash regarding many scandals within aged care
facilities around 2017. The Kathryn Greiner (the Greiner report), was catalytic for the 2018
amendment of the amalgamation and reform of The Retirement Villages Act 1999 (NSW)
and the Retirement Villages Regulation 2017 (NSW) into the Retirement Villages
Amendment Act 2018 (NSW), which took on board the 17 recommendations of the report,
including; a 90 day settling in period for the residents. The 17 recommendations
incorporated into the law reform all cumulatively better protected the rights of those elderly
people seeking shelter and enforces these reformed rights, whereby the amendment also
provides for various penalties to apply to the act where these changes are not complied with,
ranging from $2,200 to $22,000 for each offence. Similarly, the Quakers hill mass murder
in an aged care faciltiy (2011) was catalytical for a colonial inquest held in 2014. This found a
lack of fire sprinklers, meaning the rights of vulnerable elderly people seeking shelter in
these facilities were insufficiently protected and thus the Environmental Planning and
Assessment Amendment (fire sprinklers) Regulation Act 2014 (NSW) was introduced to
mandate the instalment of emergency fire sprinklers in aged care facilities. This law reform
upheld the international right to an “adequate standard of living and health” and protects
vulnerable elderly people seeking shelter in aged care facilities by outlining standards and
expectations that those providing the shelter must meet. Thus, the law has reformed to a
large extent in order to protect those elderly people seeking aged care shelter, however with
40% of aged care residents in these facilities having experienced abuse (ABC, 2020)
more is needed to more extensively protect those seeking shelter.
RIGHTS OF TENANTS/ RESIDENTIAL TENANCIES ACT
The law has also reformed to a significant extent to protect tenants who seek to rent shelter.
Changes to the Residential Tenancies Act 2010 (NSW) came as a result of a statutory
review from 2015-16, which provided a tabled report to parliament in 2016, proposing 27
recommendations. This led to the introduction of the Residential Tenancies Amendment
(Review) Act 2018, which introduced a multitude of reforms and improvements,
implementing a majority of the recommendations. The amendment reduced discretion within
the previous act, particularly in relation to “fit for habitation”, by defining this through the
introduction of seven minimum standards, some of which include; the rental property being
structurally sound and having adequate ventilation. The amendment act reduced the
landlord’s discretion in the adequacy of a rental property for a tenant and as a result,
safeguards the right of those seeking rental shelter, by guaranteeing them a range of
minimum standards to adequate shelter. This reform was largely needed after cases such as
the Chloe Leeds case, where the property she was renting was “green with moss”, however
when she moved out, the landlord took her to court for breaking the contract and the judge
ruled she had to pay the remaining 6 months fees plus costs. This case examples the way
that tenants rights were underprotected and highlights the need for the residential tenancies
act reform. During 2019, the Residential Tenancies Regulation was developed to allow the
reform to take effect, implement the recommendations and replace the current legislation.
One of these changes included domestic violence provisions to protect those seeking rental
shelter who are victim to domestic abuses. This allows the tenant to end a tenancy
immediately if themselves or their child/dependant is in a domestic violence situation, without
being penalised. If an AVO is granted that excludes a co-tenant (perpetrator) from accessing
the property, the co-tenants’ tenancy will automatically end and the tenancy will simply be
transferred to the victim. Otherwise, the victim can terminate their tenancy immediately in
cases of domestic violence without penalty and are also excluded from liability of property
damage caused by the perpetrator. The multitude of options victims of domestic violence
seeking rental shelter are provided, recognises the intricate nature of domestic violence and
protects the safety of those seeking rental shelter where the urgency of the situation and the
safety of the victim is recognised and prioritised over tenancy contract details. Thus overall,
the amendments to the Residential Tenancies Act 2010 (NSW) protects the rights of those
seeking shelter in relation to rental properties to a significant extent.
REAL ESTATE AGENTS
The law also protects those seeking the purchase of shelter to a great extent. The
deceptiveness of real estate agents in order to favour the rights of the provider over the
people seeking to secure shelter led to many people being taken advantage of when trying
to purchase shelter by both underquoting and using ‘dummy bidders’. Real estate agents are
underpinned in their actions by the Conveyancing act 1919 (NSW) , which mandates the
legal assignment of property. However, real estate agents were often taking advantage of
those seeking shelter at auctions, whereby they would invite ‘fake bidders’ to participate in
auctions in order to drive the value of a property up. This meant many people trying to seek
shelter ended up not being able to afford a property or paying an amount much greater than
they needed to, this was restricted in the introduction of the Property, Stock and Business
Agents Act 2002 (NSW), where those participating at auctions were required to register to
prevent ‘dummy bidding’. This legislation was then further amended by the Property Stock
and Business Agents Amendment (Property Industry Reform) Act 2018 (NSW) , in
order to introduce a licensing system and extend the rules of conduct to better govern the
conduct of agents working in the shelter industry. These reforms greatly limited the ways that
those seeking shelter could be manipulated and thus protected their right to seek shelter in a
fair and ethical way, as highlighted by the (SMH, 2005), “Dummy bidders now face $55k
fine”, introduced as “part of sweeping real-estate reforms that aimed to improve the
industry's transparency and ethical standards”, in order to protect the rights of those
seeking shelter. Real estate agents were also often underquoting the value of a property in
order to entice competition, meaning many people seeking shelter would lose money getting
inspections on the property, only to later be ‘gazumped’, when the property was being sold
for a much higher value than quoted. In order to protect those seeking shelter from being
taken advantage of, the 2016 law reform of the Property Stock and Business Agents Act
2002 (NSW), restricted the price range a real estate agent could quote the value of a
property for; with a 10% difference in how they market a property. This restriction on the
powers of real estate agents better protected the rights of those seeking shelter by
preventing them from being misled on the value of a property and losing both time and
money in it’s pursuit. These introduction of the Property Stock and Business Agents Act
2002 (NSW), as well as the reforms to it have greatly protected the rights of those seeking to
purchase property by restricting the way in which they can be exploited for profit of both the
seller and the real estate agent.
Legal and non-legal responses
AGED CARE FACILITIES
Legal responses have protected those seeking shelter in aged care facilities to a great
extent. Elderly people are some of the most vulnerable people within the Australian
population and the high demand for aged care facilities in conjunction with their low supply,
means many seeking shelter in a retirement village are exploited and taken advantage of.
With the nation expected to have 50% more people 55+ by 2036, there is a substantial need
for better protection of those seeking shelter in these facilities. The aged care act 1997 is
the overarching piece of legislation that covers government funded aged care and outlines
rules for funding and regulation. Each year, a report on the operation of this act is reported
on to the Australian parliament as an introduced policy after the social backlash regarding
many scandals within aged care facilities around 2017. The Kathryn Greiner (the Greiner
report), was catalytic for the 2018 amendment of the amalgamation and reform of The
Retirement Villages Act 1999 (NSW) and the Retirement Villages Regulation 2017
(NSW) into the Retirement Villages Amendment Act 2018 (NSW), which took on board the
17 recommendations of the report, including; a 90 day settling in period for the residents.
The 17 recommendations incorporated into the law all cumulatively better protected the
rights of those elderly people seeking shelter and enforces these reformed rights, whereby
this legal response also provides for various penalties to apply to the act where these
changes are not complied with, ranging from $2,200 to $22,000 for each offense. Similarly,
the Quakers hill mass murder in an aged care faciltiy (2011) was catalytical for a colonial
inquest held in 2014. This found a lack of fire sprinklers, meaning the rights of vulnerable
elderly people seeking shelter in these facilities were insufficiently protected and thus the
Environmental Planning and Assessment Amendment (fire sprinklers) Regulation Act
2014 (NSW) was introduced to mandate the installment of emergency fire sprinklers in aged
care facilities. This legal response upheld the international right to an “adequate standard of
living and health” and protects vulnerable elderly people seeking shelter in aged care
facilities by outlining standards and expectations that those providing the shelter must meet.
Thus, the law protects elderly people seeking aged care shelter to a great, however with
40% of aged care residents in these facilities having experienced abuse (ABC, 2020) more
is needed to more extensively protect those seeking shelter.
AGED CARE FACILITIES (non-legal)
Non-legal responses have worked with legal responses to a large significant extent in regard
to protecting those seeking shelter in aged care facilities. The Senior rights Service (1986)
is an NGO that is dedicated to protecting and advancing the rights of older people,
particularly vulnerable and disadvantaged groups. They provide free and confidential
telephone advice, aged care advocacy and support, legal advice and rights-based education
forums to seniors across NSW. This NGO improves the ease of access in which vulnerable
elderly people can access their laws and ensure their rights are being upheld, complimenting
the legal responses to a great extent. The Senior Rights service has been highly accessed,
with “over 22,000 people reached through our face-to-face community education
efforts and also 51,000+ hits to our website in the 2014/15 fiscal year”. The
effectiveness of this non-legal response can be seen in the case of Micheal, where the
Senior Rights Service advocated for Micheal to be able to maintain relationships, which the
aged care facility disallowed him from continuing. As a result the Senior Rights Service
highlighted that there was no legal order preventing him from attending a local men's shed to
visit his friends and thus protected Micheal as a vulnerable person from being taken
advantage of. This case is just one of the 7,016 cases that the Senior Rights Service has
provided advocacy in and one of the 2,987 cases of legal support they have provided to
elderly people from the 2019-2020 period. It Highlights how non-legal responses have
worked with legal responses to a great extent in order to protect those seeking shelter in
aged care facilities. With 100% customer satisfaction of their legal education and 94%
customer satisfaction for their advocacy services, it is objectively clear that this non-legal
response has complemented legal responses to a great extent and is significantly effective
in protecting and empowering those seeking shelter in aged care facilities.
TENANTS RIGHTS/ RESIDENTIAL TENANCIES ACT
Legal responses have protected tenants seeking shelter to a significant extent.Changes to
the Residential Tenancies Act 2010 (NSW) came as a result of a statutory review from
2015-16, which provided a tabled report to parliament in 2016, proposing 27
recommendations. This led to the introduction of the Residential Tenancies Amendment
(Review) Act 2018, which introduced a multitude of improvements, implementing a majority
of the recommendations. This legal response reduced discretion within the previous act,
particularly in relation to “fit for habitation”, by defining this through the introduction of seven
minimum standards, some of which include; the rental property being structurally sound and
having adequate ventilation. The amendment act reduced the landlord’s discretion in the
adequacy of a rental property for a tenant and as a result, safeguards the right of those
seeking rental shelter, by guaranteeing them a range of minimum standards to adequate
shelter. This legal response was largely needed after cases such as the Chloe Leeds case,
where the property she was renting was “green with moss”, however when she moved out,
the landlord took her to court for breaking the contract and the judge ruled she had to pay
the remaining 6 months fees plus costs. This case examples the way that tenants rights
were underprotected and highlights the need for legal responses to amend residential
tenancies act. During 2019, the Residential Tenancies Regulation was developed to allow
the reform to take effect, implement the recommendations and replace the current
legislation. One of these changes included domestic violence provisions to protect those
seeking rental shelter who are victim to domestic abuses. This allows the tenant to end a
tenancy immediately if themselves or their child/dependant is in a domestic violence
situation, without being penalised. If an AVO is granted that excludes a co-tenant
(perpetrator) from accessing the property, the co-tenants’ tenancy will automatically end and
the tenancy will simply be transferred to the victim. Otherwise, the victim can terminate their
tenancy immediately in cases of domestic violence without penalty and are also excluded
from liability of property damage caused by the perpetrator. The multitude of options victims
of domestic violence seeking rental shelter are provided, recognises the intricate nature of
domestic violence and protects the safety of those seeking rental shelter where the urgency
of the situation and the safety of the victim is recognised and prioritised over tenancy
contract details. Thus overall, legal response to protect the rights of those seeking shelter in
relation to rental properties has been done to a significant extent.
TENANTS RIGHTS/ RESIDENTIAL TENANCIES ACT (non-legal)
Non-legal responses have complimented legal responses and protected the rights of tenants
to a large extent. The Tenants Union NSW is an NGO Which is the main resourcing body
for Tenants Advice and Advocacy Services (TAASs) and is a community legal centre
specialising in NSW residential tenancies law. They are based under the (Adoption of
National Law) Act 2012 (NSW) and mostly advocate for the rights of tenants, particularly
those “economically and socially disadvantaged”. They also work for reform of laws and
for policies to make sure renters have more stable, liveable and affordable homes from
issues ranging from affordability, coronavirus to bonds. They are an easily accessible
platform of legal advice and guidance for tenants, with over 26,000 people got in touch
with a local Tenants Advice and Advocacy Service and received nearly 100,000
sessions of assistance (from 2019-2020). (LinkedIn, 2021). They also participated in law
reform campaigns resulting in the passing of the Residential Tenancies Act 1987, the
Residential Parks Act 1998 and, more recently, the Residential Tenancies Act 2010 and
Boarding Houses Act 2012, highlighting their high level of advocacy and involvement in
tenancy rights. They’re advocacy for tenant rights can be seen to a great extent in, SMH
“Tenants Union calls to ban no pets clause” a woman was turned down from every
apartment because she was a pet owner; this is under an unfair clause in the Residential
Tenancies Act 2010 (NSW). The Tenants Union of NSW (TUNSW) has now asked for a ban
on clauses prohibiting pets in lease agreements as part of their submission to Fair Trading
NSW’s tenancy review discussion paper. Thus, exemplifying the way that legal and non-legal
responses work together coherently to protect the rights of tenants to a large extent.