1. Background
As the administrator of the Homes NSW properties, Homes NSW has the right to limit the access to public housing properties under the Inclosed Lands Protection Act 1901.
Homes NSW works in collaboration with the NSW Police to develop strategies that address antisocial behaviour and crime in public housing. One of these strategies is to limit access and use of public housing to the people who have a legal or legitimate reason to be on the premises.
The intent of this policy is to explain how and when Homes NSW will issue banning notices.
2. Scope
Homes NSW will place and enforce ‘banning notices’ on people engaging in unlawful or antisocial behaviour or who cannot demonstrate a legitimate reason for being on Homes NSW’ premises.
3. Policy statement
Homes NSW will issue banning notices to enforce the rights of Homes NSW, as owner of public housing properties, in accordance with the Inclosed Lands Protection Act 1901.
Homes NSW may issue a banning notice to people who are engaging in unlawful or antisocial activity or cannot demonstrate a reason to be in or enter the premises, in accordance with the Inclosed Lands Protection Act 1901, based on a recommendation from the NSW Police. This is irrespective of whether they are invited as guests by a resident.
The notice will be issued directly by Homes NSW. The NSW Police are primarily responsible for enforcing the ban, once the notice has been issued and once a person is found to be in violation of the notice.
Homes NSW will normally implement the recommendations by the NSW Police to issue a banning notice or apply an exemption.
This Policy does not replace the ability of Homes NSW to apply visitor sanctions to a group of tenancies within a complex, precinct or area or dealing with breaches of the Tenancy Agreement as per the During a Tenancy Policy.
Banning notice
A banning notice is a formal revocation of the right to enter designated premises, (it must have boundaries clearly identifiable and related to the noted property) without lawful excuse and can be issued at any time. It is a written document to an identified person, clearly stating a designated premises and may only be issued directly by Homes NSW, under the Inclosed Lands Protection Act 1901, and under its obligations under the Housing Act 2001 to provide, among other things, secure and appropriate housing.
A banning notice is to be used for crime prevention programs in public housing complexes managed by Homes NSW, where the Police and Homes NSW work in collaboration. It aims to support other strategies directed at combating antisocial behaviour and preventing illegal activity in public housing.
Designated public housing premises
The designated public housing premises include the actual building of the block of apartments and common areas, such as common rooms, parking areas, playgrounds, recreational areas, sidewalks, yards, shared laundries, stairwells, hallways, entranceways and lift areas.
Unlawful entry on inclosed lands
Unlawful entry on inclosed lands is: “Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner…….., or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands…” (Inclosed Lands Protection Act 1901)
Inclosed lands
“Inclosed lands” means: “Any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure,”(Inclosed Lands Protection Act 1901)
Criteria to issuing a banning notice
Entrance to the complex is restricted to public housing residents of that complex, their household members, authorised visitors and guests, as well as Homes NSW staff, contractors, government representatives and law enforcement officials.
When the NSW Police are conducting crime prevention operations at a specified public housing complex, people entering the complex may be required by the NSW Police to identify themselves and to prove a specific, legitimate purpose to be on the premises. All other non-residents determined to be or trying to enter the public housing complex without a legitimate reason, or for the purpose of unlawful and or antisocial activity, will be asked to leave the property immediately and will be issued with a written banning notice.
Examples of unlawful or antisocial activity are: drug possession, weapon possession, threatening or violent behaviour, home invasion, robberies, standovers, vandalism, steal from dwelling, etc. It also includes those that cause inconvenience or risk to other tenants, such as storing unlawful substances or goods at the premises of another tenant.
The banning notice will not be issued to tenants who live within the public housing complex that is being targeted by the crime prevention operation.
Issuing a banning notice
The notice will be issued at specific dates and times, specifically for the complex targeted for the crime prevention operation identified by the NSW Police.
When issuing a notice, Homes NSW will notify the person in writing of the:
- designated banned area
- period of the banning
- implications of breaching the notice; and
- right to request a review of the decision.
Homes NSW is not obliged to undertake any preventative measures, such as a warning, to issue a banning notice.
In some circumstances and subject to approval from the Deputy Secretary, Homes NSW may otherwise issue a banning notice at its complete discretion at any public housing property and without a recommendation from the NSW Police being made.
Duration of a banning notice
The notice will be time-limited up to twelve months, with the ability for it to be amended or revoked before the period expires. Where Homes NSW decides to extend the ban, this will be communicated to the person in writing.
Enforcement of banning notices
Once a notice is issued, the NSW Police will enforce the notice under s10 of the Inclosed Lands Protection Act 1901.
Tenants and staff who observe a banned person in the public housing premises from which they are banned will need to notify the NSW Police.
Exemptions and variations
In circumstances where a banned person is unreasonably disadvantaged, Homes NSW may vary or revoke a banning notice. Homes NSW Director Housing Services within the local District has the delegation to vary or revoke a banning notice.
Homes NSW will assess a request for an exemption on a case-by-case basis and make a decision based on the individual circumstances of the banned person and the safety and wellbeing of the public housing residents.
Exemptions to entering the public housing premises will be considered in those cases where there is a “legitimate business or social purpose” for the banned person to be or enter the designated public housing premises and the person is able to demonstrate appropriate evidence. Examples of “legitimate business or social purpose” include, but are not limited to:
- visiting a friend or family member
- taking care of a sick friend or family member
- attending childcare responsibilities that can only be undertaken in the public housing premises
- assisting a friend or family member with a move from the property; and
- circumstances involving an emergency, or any other valid reasons that can be substantiated and supported by the banned person.
Where permission to enter into the premises is approved, the permission may be granted under restrictive visitation conditions, specifying dates and times as determined by Homes NSW.
Where such an exemption is approved, the Client Service Team and the NSW Police will be notified and the banning notice held on record marked accordingly.
Registration and monitoring
Homes NSW will maintain a Register with the banning notices issued and the infringement notices that will be regularly reviewed, in consultation with the NSW Police.
Homes NSW and NSW Police will regularly review and monitor the application of banning notices alongside other strategies to address antisocial behaviour and crime in public housing.
4. Legislation and compliance
Homes NSW manages tenancies in accordance with the provisions of the Residential Tenancies Act 2010 and the Housing Act 2001 and enforces Homes NSW's rights as a landlord under the Inclosed Lands Protection Act 1901.
This provision applies to ensure Homes NSW can comply with its legislative obligations, as well as its contractual obligations under the residential tenancy agreement.
5. Related documentation
6. Further information
Dispute resolution
If a person disagrees with a decision made by Homes NSW, they should request the local Homes NSW Director Housing Services for a review of the decision, in writing, within 30 days of the notice being issued.
The Homes NSW Director Housing Services will only consider requests from the person who is the subject of a banning notice.
A decision to issue a banning notice cannot be challenged at the NSW Civil and Administrative Tribunal, as the Tribunal does not have jurisdiction in this matter.
A tenant cannot request a review of a decision in relation to the banning notice to one of their visitors found to be engaged in antisocial behaviour or unlawful activity.