The first time I represented someone in an eviction trial, the magistrate was accused of bias by our opponent and we still lost the case. Despite two adjournments and the best efforts of the magistrate to find a statutory path that would enable my client, an elderly Aboriginal man, to remain in his home, the legislation that governs renting in Western Australia offers no defence at the end of a fixed-term tenancy.
The end of the lease period foreclosed any rights the tenant had to remain in the property, while the landlord had no need to establish any breaches of the tenancy agreement. Two weeks after we lost the trial, my client lost his home and was out on the street. A year later he was dead.
In Perth, more than 120 people died as a consequence of homelessness in 2020 and 2021. Part of this is due to the state’s tenancy laws, which may be about to change. The deputy premier, Roger Cook, confirmed this week that the McGowan government is undertaking the most comprehensive review of residential tenancy laws in Western Australia in well over a decade. After extended public consultation, recommendations include permitting pets and minor property modifications as standard, limiting rent increases to once a year and, crucially, removing “no grounds” terminations except at the end of the first fixed-term tenancy.
The Real Estate Institute of Western Australia suggests that only 1.8 per cent of evictions are caused by “no grounds” terminations, but a survey of more than 800 renters by the WA Make Renting Fair campaign in 2020, found 8 per cent of renters had been terminated without reason. Neither figure includes tenancies terminated at the end of a fixed-term lease.
In 2020, the most recent year for which these figures are available, 470 families were evicted from public housing properties in Western Australia before a 12-month Covid-19 moratorium led to a temporary lull that ended in March last year. In the private market, April 2021 saw a 30 per cent increase in applications to terminate tenancies through the courts in WA. Since the start of the pandemic, meanwhile, the public housing waiting list in WA has shot up almost 40 per cent, with more than 18,000 families now jostling for a few vacancies. Despite a record public housing investment in last year’s state budget, total social housing stock in WA increased by just four homes in the past five years, according to recent census data.
According to the Australian Institute of Health and Welfare, there were 163,500 families on public housing waiting lists throughout the country last year, with more than a third of those in the priority category. While private rental vacancy rates remain below 1 per cent in many parts of the country, a family that is evicted from their home will struggle to find another one.
Alice, an Aboriginal woman in her 20s, who asked for her name to be changed while she looks for a home, is evidence of that. I was with her in court in August 2020 when she was evicted from her private rental property in Perth’s east. When we spoke this week, almost two years later, she was staying in a homeless refuge south of Perth, still waiting on the priority public housing list.
“You just have to adjust if you want stability, which is what I want,” she tells The Saturday Paper. “So I’ve adjusted all my thoughts and perspectives on things, just so I have somewhere safe.”
Alice has applied for about a dozen private rentals, and has been unsuccessful. Her young nephew, previously living with Alice because his mother was unable to care for him, has been unable to stay with her since the eviction. “He needs to be able to be stable and have a home where he can grow and have all those learning capabilities,” she says.
Kate Davis, the former principal solicitor at Tenancy WA, who is now researching a PhD on children’s right to housing, agrees. “Eviction to homelessness is devastating for children,” she says. “It completely undermines children’s access to education. Homelessness places children in unsafe situations at significantly increased risk of violence.”
Davis says the WA Department of Housing fails to consider children’s needs when managing tenancies. “Eviction to homelessness casts aside hope of the stability and security essential for children’s development,” she tells The Saturday Paper. “These have lifelong impacts.”
The proposed amendments would bring WA into line with other states that have already reformed their rental laws to make them fairer for tenants. It follows the lead of Victoria, which last year removed “no reason” terminations except at the end of the first fixed term, and Queensland and Tasmania which both have a legislated requirement to establish a justification for evictions, though only in the case of periodic tenancies. This week, the ACT government announced their intention to do away with “no reason” terminations entirely, including for all fixed-term tenancies, in a draft bill before the legislative assembly.
Joel Dignam, executive director of tenants’ campaign group Better Renting, says the proposed changes give ACT renters greater security than anywhere else in the country. “If a tenancy is ending, it should be because the property is no longer available for rent. There’s no good reason that tenants should be kicked out of their home when the property is still existing as a rental.
“Importantly,” he says, “we’ve seen other jurisdictions allow termination at the end of a fixed term. In effect, this still allows retaliation and makes people worry about whether they’ll get to remain in their home. The ACT has not allowed this, which means we are much closer to a ‘good cause’ framework where there needs to be a decent reason to end a tenancy – not just taking a dislike to the tenants.”
In WA, the real estate industry has suggested that “no grounds” evictions are analogous to “no grounds” divorces and suggested that removing them would drive investors out of the market, thereby depriving the state of thousands of rental properties. There is little evidence for this elsewhere in the country, with Victoria showing little sign of increased rents or rental property sales since it reformed its legislation last year.
Michelle Mackenzie, chief executive of Shelter WA, makes the point that it will remain simpler and quicker to evict problematic tenants via a normal breach notice. “The main change this reform makes is to protect good tenants from arbitrary eviction into homelessness,” she tells The Saturday Paper. “This reform will improve security of tenure and help prevent homelessness. From what we understand, it’s about safety, security and fairness for everyone.”
Perth’s street homeless population has hovered near 1000 for the past year, up two-thirds since the emergence of Covid-19. The state’s shadow minister for Housing, Steve Martin, notes that rents in Perth have increased 40 per cent in five years. “Rents are rising, vacancy rates sit at record lows and the number of people on the public housing waitlist continues to increase,” he says. “Homeless numbers remain stubbornly high and the welfare sector continues to report growing demand for their services.”
Over the past few years I have advocated for dozens of Aboriginal families facing eviction through the courts. Some struggled to pay rent for months on end; some families were unable to maintain their property to the expected standard, usually due to a catalogue of trauma and family breakdown; some faced neighbours’ allegations of antisocial behaviour from them and their visitors. In all these cases the burden of proof was on the landlord, and in many cases the evidentiary threshold to justify making a family homeless was such that the court was willing to grant a degree of latitude to a struggling but willing tenant.
But in cases involving “no grounds” terminations, or the end of fixed-term tenancies, we may as well not have bothered showing up to court. There is no defence, no evidence required, no justification needed. As things stand, a landlord can simply take issue with a tenant and 60 days later legally remove them from a property without having to explain why.
Renting is not like being married. It is a commercial agreement in which one party profits in exchange for the other party having somewhere to live. If either side fails to meet their contractual obligations, there are immediate remedies available. Rental housing affords a stable foundation for families to raise their children. Reforms to ensure this basic right cannot be revoked without reason are long overdue. It is heartening that protections could soon be enshrined in more Australian jurisdictions.
This article was first published in the print edition of The Saturday Paper on July 30, 2022 as "Shifting grounds".
For almost a decade, The Saturday Paper has published Australia’s leading writers and thinkers. We have pursued stories that are ignored elsewhere, covering them with sensitivity and depth. We have done this on refugee policy, on government integrity, on robo-debt, on aged care, on climate change, on the pandemic.
All our journalism is fiercely independent. It relies on the support of readers. By subscribing to The Saturday Paper, you are ensuring that we can continue to produce essential, issue-defining coverage, to dig out stories that take time, to doggedly hold to account politicians and the political class.
There are very few titles that have the freedom and the space to produce journalism like this. In a country with a concentration of media ownership unlike anything else in the world, it is vitally important. Your subscription helps make it possible.
Select your digital subscription