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Residential Tenancy Amendment (Covid-19) Bill 2020

Cassy O'Connor MP  -  Thursday, 24 September 2020

Tags: Legislation, Tenant Rights, Misleading Parliament, Ministerial Accountability

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, we are debating the Residential Tenancy Amendment (COVID-19) Bill 2020. We are debating amendments that were agreed to by Cabinet as part of a Cabinet decision.

What we have seen in this House today is one of the worst, most disrespectful examples of a minister of the Crown denying reality. We have a minister of the Crown walk up to the lectern and not tell the truth about planned amendments to the Residential Tenancy Act, which would have removed, or significantly amended, section 45(3)(b) of the Residential Tenancy Act - to remove the requirement that if someone is to be evicted, the landlord must show cause, give reasons and that the eviction is genuine and just.

A decision of Cabinet is Government policy. The Government's own Cabinet handbook makes that clear. I put it to you, Madam Speaker, that this parliament is being gaslit. We had a minister come in here and not tell the truth this morning, and then double-down. We had a Premier who took part in a press conference a short time ago and made these statements. A Premier who tried to tell journalists, and therefore the people of Tasmania, that black is white. The Premier says, 'No decision has been made by the Government to change the law'. This is untrue. The Premier said again that the question was in relation to whether the Government made a decision to change the law and that Mr Jaensch provided an accurate answer in that regard: Cabinet has not made that decision. That is untrue.

The Premier goes on to say -

The Leader of the Greens has been a Cabinet minister. She understands how the process of Cabinet operates. The Government deliberates on many matters, but for a law to be changed, the Government will need to make a decision on the legislation we introduce to parliament. We have not made a decision to introduce legislation to parliament.

Yes, I understand how Cabinet works. First of all, I understand the importance of having very tight security on your Cabinet documents. We had a locked file in our office, so seriously did we take our responsibility to Cabinet confidentiality and to protecting those documents. I also understood, as a minister of the Crown, that when I was asked a question in this place, I had to get up and tell the truth. Yes, the Premier was right about that. I do understand how it works. That is part of the reason that I am so gobsmacked by what has taken place in here this morning.

The Oxford English Dictionary defines 'gaslighting' as 'manipulating someone by psychological means into doubting their own sanity'. To gaslight someone is to so doubt so they question their memory, their perception, or their judgment. It undermines our understanding of reality by denying cold, hard facts.

Madam Speaker, we have seen, throughout this pandemic period, the best of this Premier, and his willingness to step up and make sure that no-one is left behind - and unfortunately, we have seen the worst of this Premier. We have seen a premier who can be very loose with the truth. That culture impacts on the entire Cabinet, so that when a minister is asked a question to which there is only one honest answer, the minister feels comfortable walking up to this lectern and not telling the truth, and when he is busted by his own documents, to come in here and double-down and pretend that a decision is not a decision.

Mr O'Byrne - It is remarkable.

Ms O'CONNOR - It is quite incredible, Mr O'Byrne.

I will just go to the document that we had in parliament this morning. Oh, that is right, it says at the top, 'Decision'. It says 'decision'.

Ms ARCHER - Point of order, Madam Speaker. Relevance, Madam Speaker. I appreciate that Ms O'Connor wants to grandstand on this issue, but she is hijacking a bill and probably should try to make it relevant. Just because it is dealing with residential tenancy does not let you have another attack on the minister when you failed with the motion to seek leave. You are just hijacking debate on a bill, and it is not relevant to the bill.

Madam SPEAKER - That is not a point of order, Attorney-General.

Ms O'CONNOR - Thank you, Madam Speaker. It is absolutely relevant, because one of the clauses we are amending in the legislation we are debating today is section 45(3)(b) of the Residential Tenancy Act, which requires landlords to give genuine and just reasons before they deliver a notice to vacate - an eviction. It could not be more relevant.

Madam Speaker, a decision of Cabinet is a decision of the Government. That is why at the top of this document it says, 'Decision'.

Under 'Decision', it says -

Residential Tenancy Amendment Bill 2020

Cabinet today deliberated on the material submitted to it in relation to the Residential Tenancy Amendment Bill 2020 and decided to agree and approve drafting to finalise the Residential Tenancy Amendment Bill 2020 subject to the following amendments -

I will not go into what (a) is. I do not need to go into (b), but -

(c) Vacate the previous Cabinet decision in regard to the Director of Housing v Parsons matter -

The Parsons matter -

- and not proceed with the proposed amendment to remove the genuine or just requirement in the context of an order for vacant possession.

Ms ARCHER - Point of order, Madam Speaker. I am going to insist -

Ms O'CONNOR - Madam Speaker, I understand why the Attorney-General is so touchy on this one.

Ms ARCHER - Point of order. No, I am not touchy on this, Madam Speaker. I am going to call relevance on it because the bill we are dealing with - she may think she is onto something here, but this is the Residential Tenancy Amendment (COVID-19) Bill 2020. I have introduced many different bills in relation to residential tenancy throughout this year. This one strictly relates to COVID-19, and it bears a different title to the decision to which Ms O'Connor is referring.

Madam SPEAKER - That is not a point of order. Please continue.

Mrs PETRUSMA - Point of order, Madam Speaker. Under Standing Orders 151 and 201, it is a point of order, because as it says here, it has to be relevant to the bill before us. The Attorney-General has pointed out that this is a different bill. It is not the act that Ms O'Connor is speaking to.

Madam SPEAKER - With all due respect, I do think it is relevant to residential tenancy.

Ms O'CONNOR - Thank you for your wisdom and guidance, Madam Speaker. I get it. I understand why Ms Archer and Mrs Petrusma are so desperate to stop me telling the truth in this place.

Ms Archer - We would like to see tenants protected and landlords protected. How dare you say that. What do you think this is?

Madam SPEAKER - Can we have some discipline here, please?

Ms O'CONNOR - We are talking about one piece of legislation, the Residential Tenancy Act 1997. This bill has the COVID-19 amendments, and one of the amendments relates to section 45(3)(b), which is a genuine and just provision that this Government, before the pandemic, made a decision to remove. This Government made a decision to make it easier to evict people. There is no getting away from that. The Premier can try to tell us black is white, the minister can get up in here and lie his face off, but there is no getting away from that. If the minister is offended I have said the word 'lie' not in a substantive motion I will withdraw it, but the truth is the truth and this minister did not tell the truth to parliament this morning.

There is a reason his arguments are so implausible. If we go back, Mr Gregory Parsons was a 55-year-old person with an intellectual disability who lived in his Glenorchy home for 10 years. He was told by Housing Tasmania that his lease would not be renewed in 2017. The Tenants' Union on behalf of Mr Parsons took the case all the way to the full bench of the Supreme Court which found in favour of Mr Parsons and the Tenants' Union. They found that Housing Tasmania needed to have given genuine and just reasons for evicting Mr Parsons.

When the minister stood up this morning and said he was not aware of any decision, I go now to Dr Woodruff's excellent questioning of the minister in Estimates last year where he said such things as -

Housing Tasmania will now take time to consider the various implications of yesterday's court decision. I can comment more generally on the issue of evictions … I can confirm that Housing Tasmania will consider the implications.

Dr Woodruff pressed him repeatedly on behalf of Mr Parsons as well as every tenant in public housing in Tasmania. Dr Woodruff said -

Either the mechanism exists or it doesn't. Is there a review opportunity available to them? If they get a notice of eviction do they get given a statement as to why they have been evicted and if so can they go to somebody or review panel and argue a case?

Mr Jaensch replied -

I think that goes to the heart of the matter that the court decision was provided on yesterday. We will be considering that matter and how it was dealt with in that case and what its implication are for the future and I will wait for Housing Tasmania's advice.

Further on, because Dr Woodruff relentlessly pressed the minister on behalf of tenants, Mr Jaensch said -

As I said earlier on, the court decision came down yesterday. I am yet to receive from my department their advice on the implications of that.

And short time later -

I am awaiting my department's advice on the implications of the court decision yesterday.

Indeed, we came in here in question time and asked the minister about this full bench of the Supreme Court's decision and he gave the same answer last June, more than a year ago.

It absolutely fails the pub test that the minister, Mr Jaensch, could say he was not aware of the decision when more than a year ago he was waiting for some advice from Housing Tasmania on how to deal with section 45(3)(b) of the Residential Tenancy Act.

This is what happens - because it is true: I have been in Cabinet and I have been a minister. Housing Tasmania provided the advice to the minister about how to deal with evictions and section 45(3)(b). It is possible that Housing Tasmania gave the minister a number of options, probably two. What happened then is that the minister, after getting his advice from Housing Tasmania, agreed that section 45(3)(b) needed to be amended to remove or significantly alter the genuine and just provisions in order to make it easier for Housing Tasmania to evict tenants. Subsequent to that a paper was taken to Cabinet and Cabinet agreed. Cabinet made a decision that it would move on the genuine and just provisions in the Residential Tenancy Act.

If we go to the Cabinet handbook - I am not sure if Mr Jaensch has read it, or maybe the Premier needs a refresher - it talks about the collective responsibility and Cabinet confidentiality.

1.4.1 The collective responsibility of ministers for government decisions requires collective adherence to all resolutions agreed in Cabinet. Cabinet decisions reflect collective deliberation and are binding on all Cabinet members as government policy

1.4.3 Cabinet's ability to reach collective decisions is aided by agencies insuring adequate prior consultation on matters which come to Cabinet so that major differences between portfolios are resolved or understood before discussion in the Cabinet room.

1.4.5 If a minister is unable to publicly support a Cabinet decision, the proper course is for him or her to resign from Cabinet.

Madam Speaker, once upon a time in the age of consequence a minister who knowingly misled parliament would resign that day. That is what happened to Steve Kons after the infamous 'shreddergate' expose. That is what ultimately happened to Mr Brooks, but it took some time because by then standards had slipped. There have to be consequences when ministers of the Crown mislead. What we got today was a minister coming in and misleading and then misleading again. There was a double mislead. He dug in and then was backed up by the Premier who tried to tell the people of Tasmania that no decision was made. Where are we, Madam Speaker, in our democracy?

Dr Woodruff - In a bad place.

Ms O'CONNOR - We are in a bad place, Dr Woodruff. We are in a bad place when there are no apparent consequences for knowingly misleading parliament. If this Government had so much confidence in the minister, why were they not prepared to have the debate?

I am extremely disappointed in my colleague, Ms Ogilvie, because even if Ms Ogilvie in the end voted to give the minister confidence -

Mrs PETRUSMA - Madam Speaker, point of order. I respect your previous ruling but Standing Order 151 makes it quite clear that what Ms O'Connor is doing today is obstructing the business of the House. It is not relevant to the bill before us. This is a COVID bill. We are not debating what Ms O'Connor is talking about and it is not relevant to this bill at all. Madam Speaker, I ask you to consider Standing Order 151, which makes it quite clear that members of this House are not to obstruct the business of the House and the debate has to be relevant to the bill we are debating today.

Madam SPEAKER - I believe the debate is relevant, although probably not involving Ms Ogilvie, but it is not a point of order.

Ms O'CONNOR - Madam Speaker, I will respect your ruling and drop that subject except to express my and Dr Woodruff's deep disappointment that parliament was not given an opportunity to test confidence in a minister who knowingly and wilfully misled parliament. We will not be letting this go because there needs to be a set of standards that ministers are held to. Standards cannot be allowed to slip to such an extent that after a minister misleads he misleads again and then the Premier, outside this place, misleads again.

We will be supporting the Residential Tenancy Amendment (COVID-19) Bill 2020. We recognise that as a consequence of the provisions that were put in place following the declaration of an emergency period in response to the pandemic there have been some bumps found in the system and some refinements necessary, particularly because of the impact of the decision not to allow for rent increases or evictions, on landlords. Of course, there needs to be provisions that enable for rent arrears to be repaid, that is sound. The only reason that this House is not at this point sometime this year debating another residential tenancy amendment bill to remove the 'genuine and just' provisions is because a pandemic arrived. Ironically it is the pandemic that saved Tasmanian tenants from having that protection of the genuine and just provisions relating to evictions in the act, the principal act.

I understand that Ms Standen has a similar two amendments that have been put forward by the Tenants' Union of Tasmania. We have very similar amendments based on the guidance that has been given to us by the Tenants' Union of Tasmania and they are important improvements to the legislation.

I note the correspondence received from the Tenants' Union of Tasmania yesterday. They only received a copy of the Residential Tenancy Amendment (COVID-19) Bill 2020 earlier this week, on 22 September. They are supportive of the intent of the bill because it diminishes the effects of the COVID-19 pandemic on landlords and tenants. They say, however, 'After reviewing the bill, we believe that there are a number of amendments that would strengthen the bill to provide greater protections to tenants and landlords'.

Clause 6 of the bill will allow tenants to be able to apply for a rent arrears payment order and allow the Residential Tenancy Commissioner to make the said order. To make a rent arrears payment order the Residential Tenancy Commissioner must be satisfied that the tenant is in arrears for rent that was payable during the emergency period, and has experienced financial hardship as a result of the economic effects of COVID-19, and has the financial capacity to comply with the order. The Tenants' Union goes on to say:

However, in the event that the above criteria are established the Residential Tenancy Commissioner will have the discretion to refuse the order. This is because of the use of the word, 'may' in the proposed section 24A4. In the event that the above criteria are established the order should be mandatory, we therefore prefer the use of the words, 'is to' in place of 'may'.

We also believe that there may be residential tenants who at the time of making the application for a rent arrears payment order are currently experiencing financial hardship but may not have experienced financial hardship in the past. We therefore recommend the insertion of the words 'or is experiencing' so that the proposed section 24A(4)(b) reads, 'has experienced or is experiencing financial hardship as a result of the economic effects of COVID 19'.

We also strongly believe that the guidelines the Residential Tenancy Commissioner should consider in assessing the rent arrears payment order should be legislatively prescribed. This is particularly important given that both the tenant and landlord will be able to appeal the Residential Tenancy Commissioner's decision. Greater transparency and accountability will ensure both better decision making and an understanding of how the decision was arrived at. We therefore recommend the insertion of a new subsection (6) which sets out the guidelines to be considered by the Residential Tenancy Commissioner.

Finally, the Tenants' Union says:

We believe that the Residential Tenancy Commissioner should be provided with the ability to vary a rent arrears payment order in the event that circumstances change.

The Tenants' Union has very helpfully provided the script for the amendments. The Tenants' Union goes on to say:

As well as the suggested amendments to section 24A of the bill, we believe that the Magistrates Court should be provided with some discretion in the event that the landlord makes an application for an order for vacant possession as a result of the tenant's contravention of the schedule of the rent arrears payment order, for example, a schedule may provide that a residential tenant with a $3000 rent arrear debt has to pay an extra $100 per week over 30 weeks.

Although section 45(3)(b) of the act - that is the 'genuine and just' provision that was going to be abolished by the Gutwein Government before the pandemic - provides that the magistrate must be satisfied that the reason for serving the notice to vacate was genuine or just. Tasmania's full court of the Supreme Court has not authoritatively considered what 'genuine or just' means. In order to clarify the circumstance in which an order for vacant possession should be made, we therefore propose the insertion of subsection 43(3)(c)(b) below.

We have drafted amendments, and Ms Standen has them, and they are an important improvement on the legislation. We want to see those amendments debated and passed.

With those few words, I indicate that unless the amendments are moved by the minister, we will be taking the House into Committee.