Not in anyone's backyard

Opinions will differ on whether the NSW government's handling of the 'Ferguson Affair' is responsive or merely an illustration of an ailing government on the run, keen to preserve what's left of its electoral support by being seen as tough on crime (a toughness that diverts attention from intractable problems). One assessment might be that we should be careful not to confuse responsiveness - jumping at the command (or ptential command) of shock jocks and 'community representatives' - with responsibility, a responsibility to deliver justice and to encourage community understanding of the Australian legal system.

The NSW Premier has today announced [PDF] that

legislation would be introduced to Parliament today to give the Government new powers to protect public safety and cancel public housing leases in extreme cases. The move follows the extraordinary situation created by Dennis Ferguson's public housing tenancy. Last week the Premier asked key portfolios to audit policies and legislation regarding sex offenders. Today’s amendment is the Government's first response to the review.

"The new legislation will ensure that public safety and the protection of children are paramount". ... "This is a proportionate response to what we hope is a one-off situation. However we will continue to act whenever there is a reasonable case to do so"

The "extraordinary situation" referred to in the Premier's media release is the refusal of Dennis Ferguson to conveniently disappear from Ryde, vacating residential accommodation that he leased as a tenant of public housing.

Mr Ferguson is not, in my opinion, a nice man. He was convicted in Queensland for child sex offences. He has, however, served his time in relation to that conviction (ie completed the term of imprisonment imposed by the court). If there is additional punishment for his offences that should - indeed must - take place within a legal framework.

The implication appears to be that Ferguson will be required to leave public housing in Ryde. It is not clear whether he will be offered public housing elsewhere in NSW, given the likelihood that community activists will be critical of him residing anywhere in the state and will demand that he be removed from any location. Is he supposed to find private accommodation (perhaps difficult, if he has no private means or friends of a charitable disposition)? Is he meant to sleep under a cardboard box (although presumably not a box that is near the residences of nice people)? Perhaps he's supposed to move back to Queensland or simply to disappear.

States and democracies are judged on how they deal with unattractive and or defenceless people. The NSW government is abdicating responsibility by moving to establish 'exceptional' legislation - the 'Ferguson Law' - to deal with inconvenient problems. It is unclear whether evaporation of Ferguson's lease will indeed "ensure that public safety and the protection of children are paramount". It is tempting instead to wonder whether the Government's survival is what is "paramount" and that justice is irrelevant.

The Housing Amendment (Registrable Persons) Bill 2009 is described as "An Act to amend the Housing Act 2001 with respect to the housing of registrable persons under the Child Progtection (Offenders Registration) Act 2000". (The typo is on the NSW Parliament's database ... reassuring to see that I'm not the only one who falls asleep at the keyboard.)

The object of this Bill is to amend the Housing Act 2001 to enable the Director-General of the Department of Human Services, on the recommendation of the Commissioner of Police, to terminate the lease of a tenant who is renting public housing within the meaning of that Act and who is a registrable person under the Child Protection (Offenders Registration) Act 2000. The Commissioner of Police may make such a recommendation only if the Commissioner considers that the presence of the tenant at the public housing places any neighbours in the locality or the tenant at risk of being physically harmed or injured. The Director-General will be required to make alternative housing available to the tenant.

The proposed amendment to the Housing Act 2001 (NSW) is retrospective. It dealing with the "termination of lease of registrable person" - ie someone under the Child Protection (Offenders Registration) Act 2000 (NSW) - in "certain circumstances" the 2001 Act would be amended so that

(1) The Director-General may, on the recommendation of the Commissioner of Police, by written order terminate the lease of a tenant who is renting public housing and who is a registrable person.
(2) The Commissioner of Police may make a recommendation under this section only if the Commissioner considers that the presence of the tenant at the public housing places any neighbours in the locality or the tenant at risk of being physically harmed or injured.
(3) On termination of the lease, the tenant must vacate the public housing the subject of the lease.
(4) An order of the Director-General under this section terminating a lease operates:
(a) to give the New South Wales Land and Housing Corporation an immediate right to exclusive possession of the premises concerned, and
(b) to authorise any police officer, using such force as is reasonably necessary, to enter the premises concerned and take such steps as are reasonably necessary in order to give the Corporation possession of the premises.

The amended Act would also provide that

58C(1) On termination of a lease under this Part, the Director-General must ensure alternative housing (whether or not public housing) is made available to the tenant.
(2) The Director-General is required to ensure that alternative housing continues to be made available to the registrable person for so long as the person would have been a tenant under the terminated lease (subject to compliance by the registrable person with the terms and conditions under which the alternative housing is provided).

In dealing with the exercise of 'protected functions' by the Director-General or Commissioner the amendment provides that those functions

may not be:
(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings ...
... no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the protected person, with those provisions or with those rules so far as they apply to the exercise of any protected function.
(5) This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).

The Premier's media release states that "This amendment is a good outcome for the community that prevents us from seeing a hostile situation and potentially people taking the law into their own hands".

That is disingenuous. There will always be potential for people to take the law into their own hands. Arguably the Act legitimises agitation and invites action that will result in an offender being placed on a public housing roundabout. If you object to location of an offender in public housing you simply need to make enough noise to get that person removed - NIMBY and after a while, as we run out of backyards to park people who've met their requirements under the law, not in anyone's backyard.

One correspondent commented to me that

I do see the point concerning 'duty of care', but I think the major problem lies in the precedent this will set. The NSW Government will mitigate probable issues surrounding duty of care in this instance, but in doing so it will acquire a power that may well be the source of even more extensively oppressive use, promoting cause for even greater relief in duty of care litigation. Can you imagine a scenario where, having the power to enforce relocation, the Government fails to avail itself of the provision in every instance. The source of complaint is subject to an offence committed by the potential subject of the relocation power, and the Government is held to be liable. Alternatively, the possible subject of a relocation order is not required to move and, as a consequence, is the victim of an offence. Once again, the Government, now in possession of a specific power to relocate, is the subject of a duty of care claim.

I think sometimes that politicians resort to legislation in an effort to avoid having to uphold the law, or mitigate against possible claims, and merely create further difficulty for themselves while imperilling freedom and liberty in a broader sense.

Agamben writes of law being largely an effort to accommodate the 'exception'. I wonder what views he would have of this chain of events?

I suspect that Giorgio Agamben, author of Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998) and other works, would have a dour but unsurprised view of what is happening in NSW, as would jurists persuaded by John Rawls.