Kamis, 07 Februari 2013

Housing NSW's amnesty: a leap of faith?

Since the announcement of Housing NSW's amnesty for unauthorised additional occupants, we've received a few questions about it from tenants, advocates and community workers.

These are people who have had unhappy prior encounters with Housing NSW and its bruising way of dealing with people accused of 'rental rebate fraud'. So their biggest question is: what's the legal basis of the amnesty? What's to stop Housing NSW from turning around and using the information I give them against me?

(Indy contemplates the amnesty)

The answer is: the amnesty does not have a clear legal basis. And there's nothing in the law we can point to and say with certainty prevents Housing NSW from proceeding against you despite the amnesty.
But, we hasten to add: we're not discouraging you from using the amnesty. On the contrary: we urge you to consider it. Generally speaking, we reckon it's much, much more likely that you'll get busted by not disclosing your unauthorised additional occupant and getting found out by Housing NSW some other way, than by disclosing and having Housing NSW renege on the amnesty.

Some background. Back in 2008, Housing NSW ran a similar amnesty on 'rental rebate fraud'. The 2008 amnesty, however, had a clear basis in law: it was expressly mentioned in a schedule to the delightfully-named Housing Amendment (Tenant Fraud) Act 2008, which provided for start and finish dates for the amnesty and stated that Housing NSW could not take certain proceedings against tenants who disclosed under its terms.

By contrast, the present amnesty has no legislative basis. There's been no new legislative provisions made specifically for the present amnesty, and the provisions for the 2008 amnesty cannot be used again now (because of the way the start and finish dates are provided for). And there's nothing in the Housing Act 2001 that allows Housing NSW to declare amnesties from time to time.

We think there should be, and have asked the NSW State Government to consider introducing legislation to provide for amnesties from time to time, on terms set out in a Regulation or some other instrument published by the relevant Minister or Chief Executive of Housing NSW.

For the present amnesty, though, you will have to take Housing NSW at its word, as represented in its amnesty fact sheet and webpage, and the public statements of the Minister for Family and Community Services and the Chief Executive of Housing NSW.

We urge you to consider it. If you have any queries or concerns, please speak to your local TAAS.