22 December 2016

Shaming

The Queensland Ombudsman, in reporting on the practice of local government in shaming property owners by including their names in signage where a property is being auctioned to pay overdue rates, comments
In this chapter, I will consider the following issues:
  • whether council was required to include the homeowner’s name on the auction notice − was there an express legislative requirement? − should the relevant section of the LGR be interpreted as requiring council to include the homeowner’s name having regard to the intended purpose of the auction notice? 
  • whether it was a breach of privacy for council to include the homeowner’s name 
  • whether it was reasonable for council to include the homeowner’s name.
I will also consider the department’s role in relation to this matter.
3.1 Whether council was required to include the homeowner’s name on the auction notice 
There are two aspects to the question as to whether council was required to include the homeowner’s name on the auction notice, which will be considered separately as follows. 
3.1.1 Express legislative requirement 
Section 142(5)(d) of the LGR requires a council to display an auction notice in a conspicuous place on the land before selling it for overdue rates or charges. Council was therefore required to place the auction notice on the homeowner’s property. The issue is whether council was required to include the homeowner’s name on the auction notice. 
During the course of this investigation, it was agreed between council and this Office that there is no express legislative requirement to include owners’ names on an auction notice. 
It is therefore a matter of statutory interpretation as to whether inclusion is required. 
3.1.2 Interpretation of relevant section of LGR 
Section 142(4)(b) requires the auction notice to include ‘a full description of the land’. Council contends that this phrase should be interpreted as including owners’ names. 
During the course of the investigation, views have been expressed about the way in which the phrase ‘a full description of the land’ in s.142(4)(b) should be interpreted. These views have involved reference to ss.140(4)(d) and 154(2) and have previously been set out in this report. As such, I do not consider it necessary to repeat them here. I accept that there are arguments both ways regarding the use of terms relating to ownership and the description of property in the LGR. I consider, however, that other factors hold greater weight in terms of statutory interpretation in this instance. 
I consider that the ordinary meaning of a description of land does not include the ownership of land. Council argues that the notion of ‘land’ contemplated by s.142(4)(b) of the LGR is not ‘land’ as geography, but rather as property, in which ownership is fundamental, in that there is no property without an owner. It also argued that ownership of a property is an element in the legal description of a property and therefore omitting ownership would render the description less than a ‘full description’. While council has expressed this view, it has not put forth a compelling argument upon which to base its view. 
Council considers that if the legislature intended to exclude the owner’s name, it would have made it clear that the name of the owner was not required to be included to satisfy the requirements set out in the LGR. I do not agree that this is the case. It is my view that, if intended, the LGR requirements relating to the auction notice would have expressly included a requirement to include the owner’s name. 
Purpose of auction notices 
Council has argued that, in interpreting the term ‘a full description of the land’, the purpose of the auction notice should be taken into account and that the legislative intent was to ensure interested parties obtain notice of the proposed auction. It contends that, without the owner’s name on the auction notice, there is a real risk that parties with an interest in the land may not become aware that a property in which they have an interest is proposed to be auctioned. 
I maintain my view that the primary purpose of an auction notice is to notify potential purchasers and it is of little or no relevance to potential purchasers who the owner of the land is.17 I do accept, however, that a secondary purpose of the auction notice may be to notify those with an interest in the land. It does not necessarily follow, however, that including ownership details of the property is required to achieve this purpose. Council’s argument hinges on the presumption that those with an interest in land would know and remember the name of the owner of the land but would not know and remember the street address of the land in which they have an interest. I do not accept this argument. 
The discussion is not relevant in respect of the owner of the land, the holder of any registered interest in the land or any encumbrancee, lessee or trustee of the land who has given the local government notice of their interest in land, as council is obliged, under s.142(5)(a), to provide a copy of the auction notice to those parties. The receipt of the auction notice would alert them that the auction is of relevance to them. 
While council’s submission seems to suggest councils have an obligation generally to those with an unregistered interest in land, I do not consider that council’s submission sufficiently establishes that council’s obligations extend beyond those specifically listed in the LGR. 
Even if council’s obligations were wider than those set out in the LGR, those with an unregistered interest would know of the need for vigilance in terms of protecting their interest as they would be aware that, as their interest is not registered, the world at large does not know of their interest to advise them of any circumstance which may affect it. I consider that it is reasonable to expect that people with an unregistered interest in land that they wished to protect would be aware of the street address of property in which they have an interest and would therefore, without the need for inclusion of the owner’s name, have sufficient notice to afford them the opportunity to take whatever action necessary to protect their interests. 
A specific example provided by council is that an executor of an estate may not be aware of a particular property owned by the deceased person but may notice an auction notice which identifies the name of the relevant deceased person as the responsible landowner. One of the duties of an executor is to ‘collect and get in the real and personal estate of the deceased’. It is therefore incumbent upon an executor to identify, at an early stage of the administration of the estate, what real property is owned by the deceased. While in most cases an executor would be aware of what real property is owned by the deceased, if they are not aware, they would need to conduct a search with the Queensland Titles Registry to identify all real property in Queensland owned by the deceased. An executor would then turn their mind to what debts may be owed in respect of any property identified. In any event, for an executor to be protected from liability in distributing the estate, they would need to undertake newspaper advertising requiring any person with a claim upon the estate to forward details to the executor.  If the deceased owed rates or charges, council would, if it saw the advertisement, contact the executor accordingly. Therefore, other processes exist in respect of the administration of estates to alert an executor to any debts owing. 
I note that council’s submission provides excerpts of New South Wales legislation and examples of its interpretation and application. While the process for the sale of land in other states may be of academic interest, the New South Wales legislation is materially different to the Queensland legislation and I therefore consider it of limited value in reaching a view concerning the situation at hand. 
In summary: • there is no express legislative requirement for council to include the homeowner’s name on the auction notice • I do not accept that the term ‘a full description of the land’ in s.142(4)(b) of the LGR should properly be interpreted to include the name of the homeowner. 
I therefore do not consider that there was any requirement in the statutory scheme for council to include the homeowner’s name on the auction notice. 
I note that the department shares my view. 
3.2 Whether it was a breach of privacy for council to include the homeowner’s name 
Council and this Office agree that including landowners’ names on an auction notice is not a breach of privacy. 
The name of the owner of land is listed in the land record as referred to in s.154 of the LGR. The name of the owner of a particular piece of land is therefore a matter of public record. For this reason, releasing the information is not a breach of privacy. 
3.3 Whether it was reasonable for council to include the homeowner’s name 
While council’s inclusion of the homeowner’s name on the auction notice did not constitute a breach of privacy, it does not necessarily follow that this means council’s actions are reasonable. That is a matter for separate consideration. 
In arguing as to the reasonableness of its actions, council relies on its interpretation as to the purpose of the relevant section of the legislation, being to ensure extensive public notice of a proposed auction is given. As discussed above, I do not accept that the name of the owner is required to be included on the auction notice in order to achieve this purpose. 
Council acknowledges that including an owner’s name on the auction notice may cause significant distress to some owners, but would not cause distress to others. It argues, however, that the detriment to the owner is far outweighed by the utility in providing this information in the notice and by the legal risks of challenge to the sufficiency of the notice. I have considered the various scenarios put forth by council in relation to who may be disadvantaged by an owner’s name not appearing on an auction notice and in what circumstances. Noting the protections set out in the LGR for those with an interest in land, I consider that a circumstance where a person with an interest in land, who is minded to protect that interest, is worse off because the name of the owner does not appear on the auction notice would be extremely rare, if not, non-existent. In contrast, having regard to the number of sales of properties across Queensland each year for overdue rates and charges, the occurrence of homeowners being distressed at the appearance of their name on an auction notice displayed at their property is very real, as demonstrated by this complaint. 
Given my view, expressed above, that the regulatory scheme does not require the landowner’s name to be included on the auction notice, I do not accept that any challenge to the sufficiency of the notice would likely be successful. 
I accept council’s observation that not all property owners would be distressed at having their name on the auction notice and note that it would be relevant whether the property is their home. 
Complaints to this Office demonstrate that many properties sold by councils for overdue rates are the owner’s home. 
Many people would consider the inability to pay their bills, as and when they become due, to be a matter of shame and embarrassment. Distress is therefore a reasonably foreseeable response to the publication within a person’s community of the fact they cannot pay their bills. I also consider that it would be very common for a homeowner whose property is being sold for overdue rates and charges to have suffered a range of very difficult personal circumstances which culminated in them being in that situation. Many would be at a low point in their lives and more vulnerable than they would ordinarily be. The complainant in this case expressed their distress in terms of humiliation and the feeling of being attacked. Having regard to these factors, the level of distress possible from the publication of the owner’s name should be given appropriate weight. 
In weighing the chances of a person with an interest in land being disadvantaged by the absence of the owner’s name on the auction notice against the likelihood of it causing distress to a homeowner and the level of the distress caused, I disagree with council’s assessment that the detriment to the owner is far outweighed by the utility in providing this information. I consider the real potential for significant distress to far outweigh any perceived detriment to a person with an interest in the land not considered to be an interested party under the LGR. For this reason, I consider council’s actions in including the homeowner’s name on the auction notice to be unreasonable. 
I note that the department also does not consider it is reasonable to publish landowners’ names. 
While council has advised that its approach is consistent with advice from an eminent local government law firm, whether an action of council is reasonable or not is ultimately a matter of administrative judgement for council itself, with review oversight by this Office. ... 
 Having regard to the above, I form the following opinion and make the following recommendation: 
Opinion 1 The publication by council of the names of landowners on an auction notice is not a requirement under s.142 of the Local Government Regulation 2012, is unnecessary to support the sale of land process, and has the potential to cause significant distress to a landowner and is therefore unreasonable administrative action under s.49(2)(b) of the Ombudsman Act 2001. 
Recommendation 1 Council cease including landowners’ names in its auction notices. 
There are a number of other steps in the sale of land process which have the potential to result in the publication of a landowner’s name. One such step is the requirement in s.140(2) of the LGR for a resolution of council to sell land, where the landowner’s name could appear in the resolution, or material referenced. 
My comments as to the reasonableness of publishing a landowner’s name in connection with the sale of land for overdue rates and charges apply not only to where it may appear on an auction notice, but also where it may appear in any other publication. For this reason, I consider that council should review the information made publicly available under the sale of land process and, where relevant, ensure no unnecessary publishing of the landowner’s name. 
I make the following recommendation: 
Recommendation 2 Council review the information that is publicly available relating to land to be sold for overdue rates and charges and make changes to its procedures to ensure no unnecessary publishing of a landowner’s name occurs.
3.4 Department’s role 
Having regard to the inconsistent approach taken by councils in relation to this issue, I am of the view that the department should provide appropriate guidance to all Queensland councils about this issue. How the department chooses to do this is a matter for the Director-General. 
Department’s response to the proposed report The department noted that the local government legislation is silent as to whether a landowner’s name should be included on auction notices when selling land to recover overdue rates and charges. Accordingly, the department is of the view that publication of landowners’ names in auction notices is not necessary to ensure compliance with legislative requirements. 
I form the following opinion and make the following recommendation to the department:      
Opinion 2 Given the inconsistent approach taken by councils in relation to the publication of landowners’ names on auction notices, it would be appropriate for the department to provide advice to all Queensland councils regarding the issue. 
Recommendation 3 The Director-General provide advice to all Queensland councils to the effect that it is not necessary under the legislative scheme for landowners’ names to be published by councils in auction notices.