Posibilidades de realización (de la Cátedra)

One of the numerous complicating factors in the misconduct in SWJ’s case is the larger number of visitors and temporary occupiers at her premises. Another four of the 17 cases also involve misconduct arising from large numbers of visitors, and in interviews social housing landlords highlighted it as the most distinguishing feature of their tenancy management work with Indigenous tenants:

Kinship—that’s quite a vexed subject, when you discuss it with Indigenous

communities and leaders. The feeling is very strong. Some take a broad view, and say yes they’ve got an obligation, and others say yes, they’re obliged to give safe harbour but not put housing at risk. (WA PH)

We understand it’s hard to turn people away, particularly if they are your family who are in need. However, the tenancy’s your responsibility. (Vic CH)

The WA Housing Authority sought to terminate SWJ’s tenancy after a series of violent incidents at or near her premises. SWJ is an Aboriginal woman who lives with her two children, and their father also stays from time to time. According to police, persons leaving prison often stay at the premises upon release, and they have found up to 18 persons residing there at a time. The police have also issued several temporary restraining orders against SWJ’s partner for domestic violence, and have information indicating drug use at the premises. Over a period of about six months, police attended four incidents of fighting among numerous persons at the premises and in the street, including with knives, axes and bats, which prompted calls for assistance from the public and an emergency ‘lock down’ at the local school. The police information indicates that SWJ herself made calls to the police, but did not assist as requested with their investigation. Previous Housing Authority referrals to support agencies also resulted in no engagement.

The Housing Authority gave SWJ a no-grounds termination notice and the court subsequently terminated the tenancy. Throughout the proceedings, however, SWJ participated in tenancy support and training programs run by NGOs, and her advocates negotiated adjournments with the Authority to demonstrate continued engagement. Pending repossession of the premises, the Housing Authority is considering offering SWJ a smaller property away from the school, subject to a fixed term and close monitoring, or the prospect of an offer of a community housing tenancy.

These landlords acknowledged cultural obligations to extended family, and indicated that they give ‘consideration’ to this in determining how to respond, but insisted that Indigenous tenants would be held liable for their visitors as usual:

Our efforts go to the sorts of support that are offered to Indigenous families, rather than a different standard of tenancy performance. That’s not to say we don’t give consideration to cultural issues when we decide to escalate a situation. (WA PH) The Northern Territory presents a partial exception to this, with the management of remote public housing seen as being more tolerant of visiting—and wear and tear on properties (NT TO). However, in New South Wales, NSW TO considered that social housing policy made only certain concessions to Indigenous cultural obligations—entitlement to an extra bedroom to accommodate visitors, special provisions around succession of tenancies—but gave no other consideration in practice. This apparent equality of treatment could lead to inequitable outcomes in responses to misconduct:

I don’t think there’s any allowance. It may not be intentional, but Indigenous people are more likely to be complained about by neighbours, and policed—unjustifiably. (NSW TO)

Reflecting on the tenant organisation’s casework, NSW TO observed that cases brought in response to private owners’ complaints about nuisance and illegal use often involved Indigenous tenants:

In my experience, this is almost always Indigenous people. I remember a case where it was clear that both sides of the street were equally culpable, but only one side had the dog squad called on them.

Among the 17 Indigenous tenant cases, two disclose campaigns of complaints about tenants that have a strongly racist subtext. One of them is RPI’s case (Box 12 below).

Box 12: RPI’s case

Returning to SWJ’s case, racism does not appear as an overt factor in the response to the alarming, violent incidents at her premises. However, it is arguably in the background, in the personal and family experience that is behind her and her partner’s accommodation of so many persons leaving prison, and their frequent drug and alcohol use and violence. It is also arguably part of the difficulty of ‘engaging’ with police and other supports to which SWJ was referred while threats to her tenancy escalated. This is another complicating factor across the Indigenous tenant cases. WA TO observed it too:

Particularly for Indigenous families, they don’t take up the referrals, don’t trust them. (WA TO)

A NSW Aboriginal community housing provider, through a real estate agent engaged to manage its properties, sought to terminate RPI’s tenancy for nuisance. The agent tendered in evidence letters from other residents in the complex of dwellings, complaining about RPI’s dog, guests, loud noise, traffic in the driveway and damage to the curb, and ‘gatherings of criminals’. The letters asserted that RPI was ‘ruining [the complex’s] reputation and market value’ and that RPI was ‘mismatched’ to the neighbourhood.

The tribunal terminated the tenancy in the first instance; however, on appeal, the decision was held to be made in error and remitted to be determined again. The Appeal Panel held that the tribunal had wrongly interpreted RPI’s advocate’s submissions, accepted dubious evidence and not considered evidence that there was ‘a discriminatory aspect to the complaints’.

As we discussed in the previous chapter, unsatisfactory ‘engagement’ can drive escalating threats to a tenancy; this is especially a problem in responses to Indigenous cases.