20 Feb 2018

Tenancy law reform urgently required to help domestic and family violence victims

Domestic and family violence in Australia is widespread.

More than a third of women who've had an intimate partner have experienced at least one act of violence in their life.

More than 1 million women experienced stalking, emotional abuse and violence in 2016 alone, according to the federal Department of Social Services.

Domestic and family violence also affects the wider community with an annual cost of $22 billion in Australia.

While publications like the Queensland Government's Not Now Not Ever Report are a step in the right direction, they have made limited recommendations regarding Australian housing and regulation of the rental market.

How have states and territories responded?

Safe, accessible and affordable accommodation is critical for women to leave violent relationships and establish new, stable homes.

Currently in most Australian states and territories (Victoria, Australian Capital Territory, Tasmania, Northern Territory South Australia and Queensland), a victim is not able to immediately terminate her lease. Rather, she must apply to a tribunal or court for an order. Shockingly, there is no regulation of early termination of leases in Western Australia.

If a victim terminates an agreement before the contractual end date, without the appropriate order from the tribunal, she remains liable for compensation to her landlord and is at risk of being listed on the private tenancy databases as an unsuitable tenant, inhibiting her ability to find a subsequent rental property.

Domestic violence driving homelessness

Domestic and family violence is the highest cause of homelessness in Australia.

According to the Federal Government's Australian Institute of Health and Welfare, 40 per cent of people seeking homelessness services in 2016-17 were experiencing domestic and family violence. Nearly half (48 per cent) of these were single parents with children. Almost all adults were female (91 per cent).

The lack of affordable private rentals combined with the limited availability of public housing can deny women the opportunity to rebuild their lives following a traumatic ordeal. This is compounded by the difficulty of breaking a lease.

Why is the application process so limiting?

A brief look at Queensland's tenancy laws highlights the issues with tenancy laws in every state. Queensland's regulation is set out in the Residential Tenancies and Rooming Accommodation Act 2008 (QLD).

The Act mandates that the tribunal must consider whether the applicant has a domestic violence protection order in force or whether one had been applied for. Organisations like the Women's Legal Services and Legal Aid, find this mandatory consideration problematic. Domestic and family violence is inherently complex and as a result not all instances result in a protection order.

There are no protections in the Act to prevent landlords from unjustly listing victims' details on tenancy databases for breaching their tenancy agreement even if the breach can be attributed to the perpetrator. Penny Carr, the CEO of Tenants Queensland, an organisation that provides specialist advice and information services for tenants, stated:

"Whilst the listing is often declared unlawful, there is nothing that you can do about the unlawful practice of listing it, other than seek removal."

There needs to be tighter regulations of the actual listing of the information, as providing a means for removal is not sufficient.

No family in Australia should be forced to choose between prolonged exposure to violence during an application process or remaining legally liable for a rental property that is no longer safe.

What can be done?

New South Wales has the highest level of protection for tenants who are victims of domestic and family violence. Legislation was introduced in 2010 that allows a victim to terminate her lease, provided she gives her landlord 14 days' notice and provides an apprehended violence order with an exclusion order as evidence.

However, a 2016 statutory inquiry found that it will not be sufficient for other states to replicate the NSW policy — instead, reform must go further.

Amendments must be mindful of the cyclical relationship between the inability to terminate a lease effectively, ongoing liability for a rental property and prolonged exposure to violence. Reform must allow for early termination of a rental agreement without compensation to the landlord. This will alleviate liability for rental arrears and property damage and prevent unjust listings on tenancy databases.

A holistic and integrated domestic and family violence system is required, which understands the complexity of the issue and adequately responds to it.

Housing, police protection and support, mental health, financial assistance and efficient court processes are all important components.

Without reform of the tenancy laws in Australia, the housing component disadvantages the victims of domestic and family violence.

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