Tenants of government agencies

Apart from Housing NSW and the Aboriginal Housing Office, there are several other government agencies (State and Federal) that let properties to residential tenants. These other government agencies are not part of the social housing system.

Until recently, it was clear that tenancies in New South Wales with Federal Government agencies were covered by the RT Act 2010 and disputes could be heard in the Tribunal (Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority [1997] HCA 36). However, under recent amendments to the Federal Circuit Court of Australia Act 1999 (Cth) (section 10AA(3)), the Federal Attorney-General has issued the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth), which provides that ‘Commonwealth tenancy disputes’ (as defined by the Act) cannot be determined by the Tribunal, and must instead be determined by the Federal Circuit Court. The Instrument also provides that the law to be applied in ‘Commonwealth tenancy disputes’ is the RT Act 2010… except in one detail: the Federal Circuit Court is not bound by the requirement that possession orders relating to long-term (20+ year) tenancies give the tenant at least three months to vacate (section 94, RT Act 2010).

The Commonwealth tenancy dispute legislation applies only in New South Wales. Its definition of ‘Commonwealth tenancy dispute’ is complex. A Commonwealth tenancy dispute involves the Commonwealth as the landlord (but not as a sublessor), and a person other than a Commonwealth employee or officer as the tenant (but not as a sublessee) (section 10AA(1)). Some example are below.

This is new

The Commonwealth tenancy disputes legislation commenced early 2015.

Department of Infrastructure and Regional Development

This Federal Government department owns and, until recently, let numerous properties at the proposed airport site at Badgerys Creek; it may own and let properties at other proposed infrastructure sites. Tenancies in Department properties are subject to the Commonwealth tenancy disputes legislation, so the applicable law is the RT Act, as qualified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth), and the forum for disputes is the Federal Circuit Court.

Defence Housing Authority tenants

The Defence Housing Authority (DHA) is a Federal Government agency that lets properties around Australia to defence services personnel and their families. Tenancies in DHA properties are not subject to the Commonwealth tenancy disputes legislation, either because the DHA is a sublessor or because the tenant is a Commonwealth officer. In New South Wales, DHA tenancies are covered by the RT Act 2010 and the forum for disputes is the Tribunal (section 4; see also Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority[1997] HCA 36).

Sydney Harbour Federation Trust tenants

The Sydney Harbour Federation Trust is a Federal Government agency that owns and lets a small number of properties on Sydney Harbour. The Sydney Harbour Federation Trust Act 2001(Cth) specifically excludes the Trust from State tenancy laws (section 71). However, it appears that Commonwealth tenancy disputes legislation would apply, so the applicable law is the RT Act, as qualified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth), and the forum for disputes is the Federal Circuit Court.

Roads and Maritime Services tenants

Roads and Maritime Services is the new name for the Roads and Traffic Authority, a NSW State Government agency. It owns numerous rental properties, (particularly on land reserved for roads), which it lets on the private market through real estate agents. Its tenancies are covered by the RT Act 2010 (section 4).

Teacher Housing Authority tenants

A NSW State Government agency, the Teacher Housing Authority (THA) owns or headleases about 1500 properties, mostly in country areas, which are let to teachers. The THA manages tenancies itself, and has policies about eligibility and transfers. Its tenancies are covered by the RT Act 2010 (section 4).