Is it lawful to evict children to homelessness from public housing in Western Australia? A case study of reform advocacy.

Kate T Davis

doi:10.60867/00000104

The right to adequate housing is a human right. Housing is centrally important for childhood development and wellbeing. Despite this, 3451 children were evicted from public housing by the Western Australian Housing Authority in the eight years prior to June 2024. In WA children are evicted when the Housing Authority terminates a family’s tenancy pursuant to the Residential Tenancies Act (WA) 1987. This has significant negative consequences for children, especially Aboriginal children, in terms of their health and development, education, safety and contact with the juvenile justice system. The Noongar Elders from the Ngulluk Koolunga Ngulluk Koort (Our Children, Our Heart) research program based at The Kids Research Institute Australia provided leadership and governance for this research from the outset through a partnership agreement. The entire project used Elder-led decision-making practices, and the case study documents the researcher’s efforts to adopt Elder-led decision-making practices in strategic litigation. The research includes a partnership with SCALES Community Legal Centre to undertake aspects of the litigation. This research was in three stages. The first stage obtains and analyses data about the eviction of children from public housing in WA. The second stage is a doctrinal analysis of the legality of the current practices of evicting children from public housing. The third stage involves case studies of policy reform advocacy and test case litigation; a race discrimination complaint to the Australian Human Rights Commission; and two administrative law cases in the Supreme Court of WA. The first stage of the thesis examines the extent and circumstances of the eviction of children from public housing, using previously unpublished data obtained from the Housing Authority. Key findings highlight the high number of children evicted from public housing, and the disproportionate impact on Aboriginal families, who make up 24% of public housing tenancies but 54% of evictions from public housing. The data also shows that, contrary to the myth of the prevalence of disruptive behaviour in public housing, which amounts to only 12% of evictions, the leading cause of eviction from public housing in WA is rent arrears (49%). The data analysis also shows the increasing use of short fixed term tenancies and associated without grounds terminations by the Housing Authority in Western Australia. The second stage of the research examines whether the Housing Authority’s current practice of evicting children to homelessness is lawful. This includes three chapters of doctrinal research in the areas of residential tenancies law, discrimination law, and administrative law. Each of the three chapters presents arguments that aspects of the Housing Authority’s current practice of evicting children from public housing are unlawful. The third stage of the thesis sets out case studies of test case litigation and policy reform advocacy. The case studies include extensive reform proposals developed with Elders and in consultation with Tenant Advocates and tenants facing eviction. The case studies chart the lengthy conduct of the representative race discrimination complaint to the Australian Human Rights Commission, as well as two Supreme Court proceedings. Central to the case study of the race discrimination complaint is the voice of Barbara Abraham, a Noongar Bilya Elder who was the driving force behind the complaint. She shares her family’s story of surviving the Pinjarra Massacre, the Stolen Generations, and then rolling evictions to homelessness, with devastating consequences for her family. The case studies also explore policy reform advocacy undertaken in parallel to the litigation, through submissions to government Ministers and in media campaigning. The findings are relevant more broadly for advocacy and test case litigation in the public interest and social change legal practice. This thesis provides a unique research contribution exploring the integration of Elder led decision making in strategic litigation to prevent childhood eviction to homelessness. This applied research has had significant impact. The project has resulted in over 30 media stories highlighting the issues of evictions from public housing. The case study litigation achieved a favourable precedent in Abraham v Housing Authority [2022] FAC 1145 with a Federal Court injunction to prevent eviction during the AHRC investigation process. The research directly supported significant community sector advocacy for reforms to prevent children’s eviction from public housing. During the period of litigation and advocacy in this research, the Housing Authority evicted less than 200 children each year from public housing, down from the peak of 809 children evicted in 2016-17.

Is it lawful to evict children to homelessness from public housing in Western Australia? A case study of reform advocacy.

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