One Strike,Three Strikes

New South Wales , Parliamentary Debates, Legislative Assembly, 5 August 2015, 2058 (Brad Hazzard, Minister for Family and Community Services).

Tasmania, Victoria, Western Australia and the Northern Territory currently have ‘three strikes’ policies; Queensland and South Australia have previously had such a policy.

In the US, almost 20 years ago, Bill Clinton introduced the ‘One Strike and You're Out’ policy for adoption by local public housing authorities. Clinton William J , ‘Remarks Announcing the “One Strike and You're Out” Initiative in Public Housing’, The American Presidency Project, 28 March 1996 <http://www.presidency.ucsb.edu/ws/?pid=52598>.

There are two other ways – proceedings on a termination notice without grounds (ss 84 and 85), and proceedings on the ‘behaviour ground’, which is associated with provisions for ‘acceptable behaviour agreements’ – but, in practice, both are almost never used by social housing landlords. See Martin Chris , ‘Conduct and Contracts: Using tenancy law to govern crime and disorder in public housing in New South Wales’ (2015) 5 (2) Property Law Review 81, 86; and Martin Chris , Government Housing: Governing crime and disorder in public housing in NSW (PhD thesis, University of Sydney, 2010), chapter 7.

FACS Housing is an agency of NSW Family and Community Services and manages public housing properties owned by another government agency, the NSW Land and Housing Corporation.

See the cases reviewed at Martin , ‘Conduct and Contracts’, above n 4.

McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98.

NSW Land and Housing Corporation v John Raglione [2015] NSWCATAP 75; NSW Land and Housing Corporation v Romeyn [2015] NSWCATCD 123; Davis v NSW Land and Housing Corporation [2015] NSWCATAP 271.

The ground at s 92(1)(a) – threats or abuse – differs only in that it does not use the qualifiers ‘intentionally or recklessly’. The ground at s 92(I)(b) – intimidation and harassment – differs in that the conduct (by the tenant, or other occupier) must be intentional, and reasonably likely to cause the proscribed effect.

Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28.

Section 16B of the Bail Act 2013 (NSW) sets out numerous ‘show cause offences’, most of them serious indictable offences.

Notably, s 49PA expressly countenances that a disability may relate to a person's addiction to illegal drugs.

There is a similar problem with a qualifier in s 90, discussed in NSW Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185 and Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281.

This represents a small fraction of the total number of termination proceedings taken by FACS Housing (and its predecessors) against tenants on these and other grounds; see Martin , above n 4, for further discussion of the numbers.

The Tribunal is generally subject to the rules of natural justice. Civil and Administrative Tribunal Act 2013 (NSW), s 38(2).