Housing Improvement Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 May 2016.)

The Hon. M.C. PARNELL (16:36): The Greens will be supporting this bill, but I just want to put a few observations on the record and to explain the intent of amendments that I have filed. First of all, the act that this bill seeks to replace is one of the older acts that we have amended a couple of times over the years but is now going to be totally replaced, and that is the Housing Improvement Act 1940.

What people obviously realise is that society and standards have changed a great deal. The question that this bill and the previous act address is: what should the minimum standards be for buildings that are used for human habitation? The answer to that question was different in 1940 as it is today. Back in 1940, the need for a flushing water closet was unheard of. What you needed was a—and I think this is a technical term—dunny can out the back in a small shed, adjoining a laneway, where someone would come and collect night soil in a horse and cart. That was the standard.

Over the years, standards have changed and they have improved. Now you see, in the regulations under the Housing Improvement Act, that flushing toilets in houses used for human habitation is now the standard. Of course, it is not just toilets; it is also other plumbing, water, access to light, and a whole range of things. Certainly, the sturdiness of houses, so that they do not fall down on people, is all part of the ongoing improvement of basic minimum standards for housing.

I would make the point that, as those standards change over time, they also change geographically quite a bit as well. If you look at similar provisions in other places, you will see that they put a higher emphasis on things that are absent from our standards. For example, if you go to the province of Alberta in Canada, you find things such as the obligation to have double-glazed windows, or at least to have shutters. Anyone who has ever been to Canada in winter would understand why that is a pretty basic requirement.

They have to have heaters. You have to have a furnace that is capable of reaching at least 22º Celsius. In the dead of winter, they make a bit of a concession, whereby it has to get to at least 16º Celsius. The consequences of living in a house in Alberta in midwinter with no heating is probably the death of the occupants.

They also have standards as to how hot the hot water service has to be (between 46º and 60º). There is a range of things that have not found their way into the South Australian housing standards, largely as a result of our different climate. There are a couple of things that I think we ought to consider in terms of future regulations for minimum housing standards, and they are the subject of my amendments.

The first thing I think housing authorities ought to be able to take into account is the environmental performance of buildings, and that includes water and energy efficiency, and also any of the fixtures, fittings and facilities provided with those premises. I am not saying that we need to set out in legislation a star rating for rental housing. I am not going that far. All I am doing is adding to the list, in the bill, the things that the government may make regulations about on this issue of environmental performance. In other words, it is in there for the occasion, which I do not think is too far away, when governments realise that, no, actually we should be mandating things other than basic plumbing and basic sunlight.

I can see a day when insulation ratings might become part of basic housing standards. I am not proposing them for today. I am not proposing any particular standards be incorporated into the regulations; all I am saying is the regulation making power ought to at least leave room open for environmental performance to be included. That is the first of my amendments. The second of my amendments is that that same list of factors to be taken into account in setting basic minimum standards should also include the construction materials that are used in premises, and in particular materials that might pose a risk to human health.

Now, people might think, 'Well, that's odd.' I will tell you what I have in mind. What if Mr Fluffy came to South Australia? Most people should have heard of Mr Fluffy. The honourable Acting President is giving a knowing look. I am sure he has heard of Mr Fluffy. It was an insulation company that operated in Canberra in the 1960s and 1970s, and they basically pumped loose fibre asbestos fill into the roof cavities of hundreds and hundreds of houses in Canberra. Canberra has a colder climate than South Australia. They have been attuned to the need to insulate their houses for longer than we have. The result of that, now that we understand the consequences of loose fibrous asbestos in people's homes, has been one of the most expensive rehabilitation programs I think in the ACT's history.

They had an expensive program of clean-up, where they were trying to pump this dangerous material out of the roof cavities. Then they discovered, of course, that the material is so fine it gets its way into wall cavities, people were finding it coming out of their wardrobes, built-in robes, in the house. So now the ACT government has embarked on a purchase and demolition program. They are buying people's houses and demolishing them because this stuff is so deadly.

I hope to goodness that we do not discover anything like that in South Australia. But I figured that, out of an abundance of caution, we could list in clause 5 of the bill, which is the place where it lists things that can be taken into account in regulations, the issue of construction materials that may pose a risk to human health, then we have that covered.

I should just say that I do not have in mind that we should sort of ban people from living in houses with asbestos, all forms of asbestos. Most of us would be homeless. Most of us live in houses, unless they are brand new, which probably have some asbestos in them. I know my place certainly does. I think every place in the street does. It is sheet asbestos, it is fibro cement, as it was called; and provided it is not damaged, you do not cut it, you do not drill it and it is painted, it is probably not going to do you any harm.

The Hon. D.G.E. Hood: And tiles.

The Hon. M.C. PARNELL: Yes, as the Hon. Dennis Hood points out, tiles on the roof. I am not suggesting that this is some grand plan to stop people living in houses that have asbestos. I think that we are a long way from that, and I think we do need to be risk based, and a lot of the asbestos that is in homes is probably relatively safe.

I will just take this opportunity to actually put on the record, given that I went to the trouble of getting a freedom of information request on this topic, details of how many public houses in South Australia contain asbestos. The figure I got back from the Department of Planning, Transport and Infrastructure is that there are 757 homes that are tenanted, that are known to have asbestos in them. These are homes that are owned or managed by the department, by DPTI. There are 152 untenanted homes that have got asbestos, and then there are a number of homes, about 111, where the status is not known. I have every hope that most of those houses are safe to live in, that the asbestos is contained and we are not talking loose asbestos, like Mr Fluffy in the ceiling, but about fibro cement in the walls.

I just make the point that, over time, as standards change and as those building materials start to degrade, it may well be that in the future we do start to have a systematic program of making our housing stock safer to live in. My amendment does not go that far. My amendment just says that the issue of building materials and their safety is something that the government can, if it wishes to, make regulations about. In other words, I have an eye to the future. As I have said, we have gone from dunny cans out the back to flush toilets in the house, and I think standards will change over time.

The other amendments I have relate to some of the incidental amendments in this bill, and they are amendments to the Residential Tenancies Act and to the Residential Parks Act. My amendments seek to remove those sections that provide for no-cause eviction. It is an issue that I have raised here before. I think a landlord, under both those pieces of legislation, does have the power to evict tenants for certain reasons. Certainly non-payment of rent or damaging the property—there are reasons for which evictions are appropriate.

You also have situations where the owner wants to move back in themselves, or they want to sell the house, or one of their family members wants to move in, or they have serious renovations that they want to do. These are all valid reasons for a landlord to end a tenancy agreement. But what I cannot allow to go through without challenging is this idea that, provided you just give three months' notice, you can kick someone out of their home for no reason at all. I think you should have to have a reason to evict someone.

Of course, as we know, even though it is against the law to retaliate against tenants for simply exercising their rights, we know landlords do it. If a tenant makes life difficult by saying, 'Can you please fix the stove?' or, 'Can you please stop the roof from leaking?' for some landlords the easier option is to just give a three-month notice, get rid of the tenant and get someone in who is a bit more subservient and is not going to cause so much trouble and is not going to insist on their rights. They are the final two of my amendments. With those words, the Greens will be supporting this bill and we look forward to the committee stage.

The Hon. D.G.E. HOOD (16:47): I rise to speak on the Housing Improvement Bill. This bill repeals the Housing Improvement Act 1940 and imposes minimum housing standards through a broad range of enforcement provisions and orders. Under this bill, the minister has the power to impose prescribed orders on any home owner to meet a minimum standard of housing. Such orders include housing assessment orders, housing improvement orders, demolition orders, notices to vacate and rent control notices. These orders allow the minister to impose very onerous responsibilities on home owners, where deemed appropriate, to improve the standard of their home, and with serious consequences for noncompliance.

As some members have already pointed out here and in the other place, the main issue is that these provisions apply to both rental and non-rental (that is, owner-occupied) homes. A home owner and occupier, despite being happily content with the condition of their home, causing no harm to anyone else, may find themselves subject to a housing improvement order. I think this is more acceptable in new housing (that is, housing yet to be built) rather than existing housing. The person subject to such an order would then be required to complete remedial works at their own expense.

The issue with this is that not all home owners will be in a position to afford the required remedial works. Under this bill, the minister has the power to enforce housing improvement orders, regardless of an owner's financial circumstances or objections, and then pass on the costs to the owner in the form of a debt owed to the government. The likelihood of this scenario occurring is possible. The minister indicates to me that it is something that is used very infrequently, but nonetheless can be used and called upon.

Notwithstanding the issue of remedial work affordability, there also appears to be an issue with the potential infringement of rights to property. When examining history, the criminal law has long regarded a person's property rights as fundamental. Indeed, William Blackstone, an 18^th century English jurist, judge and politician, wrote in his commentaries of the law of England: 'So great moreover is the regard of the law for private property, that it will not authorise the least violation of it.' Additionally, right to property or the right of a person to enjoy their property without unlawful interference from the government has been canvassed by the High Court. Justice Brennan, speaking on the right to property in Halliday v Nevill states:

The principal applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorised or excused by law.

Indeed, that is what we are debating here: whether or not we excuse by law an intrusion by an authority into a person's private property.

As noted, this bill has extensive powers. An illustration of this is the power of an authorised officer under the bill to use reasonable force to enter into the premises, if they believe on reasonable grounds that it is necessary to do so. In this case I am not sure that the community benefit of enforcing minimum housing standards on owner-occupied homes outweighs the home owners' fundamental right to property. However, I do believe it is a reasonable compromise to exclude owner occupiers from this bill, and there are amendments by the opposition to that effect.

To conclude my second reading contribution, there are certainly very serious and legitimate concerns about provisions contained in this bill, although I believe its intentions are genuinely positive. I do support the general object behind the bill, and that is to protect the vulnerable from substandard living standards. However, this bill as currently drafted, in some cases and some aspects of it, which we will be dealing with in the amendments, does go too far in my view.

Home occupiers who occupy their own homes should be able to live freely and without fear of the government infringing their right to property, so long as their existence is not harming anyone else or detrimentally affecting anyone else. Therefore, we support the second reading of this bill, but will very closely consider and scrutinise any subsequent amendments at the committee stage to determine our final position. Finally, I indicate that Family First does intend to support the amendments as proposed by the Hon. Jing Lee on behalf of the opposition.

Debate adjourned on motion of Hon. J.S.L. Dawkins.