PORTFOLIO
COMMITTEE ON HUMAN SETTLEMENTS STUDY TOUR TO
1. Introduction
The Portfolio Committee on Human Settlements visited
The following Members of Parliament and parliamentary support
staff, as well as legal representatives from the Department of Human
Settlements, participated in the study tour to
- Ms BN Dambuza (ANC)
Ð Leader of the delegation.
- Mr MR Mdakane (ANC).
- Ms GM Borman (ANC).
- Mr AM Figlan (DA).
- Mr RB Bhoola (MF).
- Ms K Pasiya Ð
Committee Secretary.
- Ms B Paulse Ð Senior
Researcher.
- Adv J Tladi Ð Legal
Adviser.
- Mr K Ngwenya Ð Legal
Adviser.
2. Background
The study
tour was necessitated by the need to learn from the Australian experience on
how it deals with legislation relevant to community schemes dispute resolution
mechanism and sectional titles. The Portfolio Committee on Human Settlements is
currently processing the Sectional Titles Schemes Management Bill [B 20Ð2010]
and the Community Schemes Ombud Service Bill [B 21-2010].
The Sectional Titles Schemes
Management Bill seeks to separate any provisions currently in
the Sectional Titles Act (No. 95 of 1986) that deal with management and
governance issues, and incorporates them into the proposed Bill. This will
ensure that sectional titles are administered by the functional Department,
i.e. Human Settlements, instead of the Department of Rural Development and Land
Reform (which is currently the case).
The Bill
also proposes the introduction of a Sectional Titles Schemes
Management Advisory Council. The aim of the Council is to make
recommendations to the Minister concerning any matter on which regulations are to
be drafted. In addition, the Council should regularly review the implementation
of the Act, as well as its regulations.
The Community Schemes Ombud Service
Bill proposes the establishment of a community schemes ombud service to settle
disputes in community schemes.
In
There is currently no effective and affordable dispute resolution
mechanism available to parties involved in community schemes in
Research
conducted on behalf of the Committee indicated that similar types of
legislation can be found in Queensland (Australia), Canada (British Columbia),
Singapore, Indonesia, Malaysia, Fiji, the Philippines, India and Dubai.
However, the South African Bill, as tabled in Parliament, was based on the
During
the first quarter of the 2011 parliamentary term, the Committee will finalise
its deliberations on both Bills, and it is anticipated that its visit to
- Functions and mandate of the Ombud Service.
- Corporate structure.
- Funding of Service Ð emphasis on whether the service generates
sufficient revenue to defray its own expenses.
- Dispute resolution process Ð conciliation, mediation and
adjudication.
- Specialist adjudication in the event of complex disputes.
- Information service and training Ð offered to members of the public
and bodies corporate.
Further, the Committee explored the role of trustees, managing
agents, as well as developers in sectional titles. In addition, the
Committee used the opportunity afforded to it to learn about how the
non-governmental sector contributes towards the development of sustainable
communities in the state of
3. Study tour visit to
Day 1
3.1
The delegation was hosted for morning tea by the Speaker of the Queensland
Parliament, the Hon John Mickel (MP), and Members (including Committee
Chairperson, the Hon Ms Lindy Nelson-Carr), and staff of the Social
Development Committee.
The
In the
past, the government created housing estates for socially vulnerable groups. As such, public housing was concentrated
and located a distance from public amenities. Recent lessons learned suggested the
need for a more careful housing mix. The negative consequence of a
concentration of poor households is that there can be no cross-subsidisation of
services. The government is also considering whether it can provide housing to
the poor indefinitely and how sustainable such provision would be over the
longer term.
In recent
years, the government initiated a process of providing social housing to
socially vulnerable people if they meet the criteria. However, beneficiaries
pay for housing, and rental is automatically deducted if they receive social
grants. The Australian delegation suggested that a critical lesson for
3.2 Queensland Department of Communities
3.2.1 Overview of
By end of
December 2009, the state of
The
housing tenure profile of
á
34% of property is being paid off through a property bond.
á
32% of property is fully owned.
á
31% of property is in the form of rentals.
á
3% of tenure type is not stated.
á
1% other tenure type.
The
dwelling structure profile for
á
80% -
separate house.
á
11% -
flat, unit or apartment.
á
8% -
semi-detached, row of terraced house, townhouse.
á
1% -.caravan,
cabin, houseboat.
á
<1% -
other type/not stated.
There is
an increase towards high density housing, which allows developers to create bulk
infrastructure. Further, people are gravitating towards the inner city, with
lower associated transport cost.
3.2.2 The state of
- Social housing Ð provides
subsidised rental housing for low-income households in high need. The
programme may be managed by government or non-governmental organisations.
Government owns the property, and the non-governmental organisations
(NGOs) manage the property (i.e. rent collection and maintenance).
- Indigenous housing Ð subsidised
housing for indigenous communities, including in remote communities.
- Private housing Ð a variety of
schemes to help people in the private rental market or the home-ownership
market. Both financial and non-financial assistance are provided through:
1.
The National Affordable Housing Agreement, where government
provides a two-year subsidy to investors of rental dwellings to keep the cost
of rent down for ten years in a new development. The developer may only rent to
certain people in need, and government also controls the rental increase.
2.
The First Homeowner Grant is provided by the federal government
to any first-time homeowner, regardless of eligibility to put together a grant.
3.
The Commonwealth Rent Assistance Scheme is a
non-taxable income supplement payment added on to the pension, allowance or
benefit of eligible income support customers who rent in the private rental
market.
4.
Tax treatment of housing investment for
homeowners who have an additional property for residential investment purposes.
The tax incentive does not apply to the primary residence.
5.
Homelessness programmes, where NGOs receive funds from
government to deliver support services and accommodation to homeless people.
3.3 Visit to Ms Desley Scott, State
Member for
The
delegation undertook a visit to the constituency office of Ms Desley Scott,
State Member for
3.3.1 Accommodation
A number
of social housing units were constructed in the community, including:
- Accommodation for youth Ð
subsidised rent. Eligible criteria include that young people have to be
employed or studying.
- Accommodation for senior
persons who meet income-eligibility criteria.
- Attached houses, with 3-4
bedrooms for eligible persons. Houses were privately built and purchased
by the state of
3.3.2. The ACESS Settlement Grant
Programme
The ACESS
Settlement Grant Programme (SGP) is funded by the Australian federal governmentÕs
Department of Immigration and Citizenship. The programme is aimed at providing information,
referral and casework services, community capacity building and services
planning, development and integration to humanitarian entrants in the area. As
such, the programme assists refugees to become self-reliant and able to
participate in the Australian society as soon as possible.
Services
include:
- Intake/Assessment: Comprehensive assessment of
the settlement needs of the client/family and developing strategies to
address these needs.
- Casework: Working with target group
clients to develop a tailored response to their settlement needs.
- Information: Providing linguistically and
culturally sensitive settlement information at individual, group and
community level.
- Referrals: Referring clients to
mainstream government and other service providers.
- Advocacy: Maintaining general support
and advocacy on behalf of clients.
- Migration advice: Service provided by a
Registered Migration Agent who advises humanitarian entrants and refugees
who intend for relatives to migrate to
- Community capacity building: Promoting and
organising forums linking community members/leaders with mainstream
service providers.
- Group support: Providing assistance,
mentoring, consultancy and advocacy services to humanitarian entrants and
refugees with low English proficiency in areas such as funding
applications, mentoring leadership training, and assistance in community
organisation development.
The
programme would assist humanitarian entrants and refugees with access to social
housing, providing furniture when needed, providing training to new tenants on
how to use household appliances, as well as work opportunities. For example, a
furniture removal business was established which employs immigrants living in the
community.
3.4 Brisbane Housing Company
3.4.1 Overview
The Brisbane
Housing Company (BHC) is an independent, non-profit organisation which provides
affordable rental housing in
The BHC has a
portfolio of housing for people on low incomes in
Maximum
rental affordability = 30% of household weekly income + Commonwealth Rental
Assistance
The BHC Rental Policy sets rent for self-contained accommodation up to
74.9% of market rent. Rent charges are capped based on unit type, location and
affordability for BHC tenants, along with the Company's requirements to remain
viable.
Rental for shared ('boarding house') accommodation is set so as to be
broadly in line with rent for similar accommodation
elsewhere within
A mix of
boarding houses, studio units and 1, 2, 3 and 4 bedroom apartments and
townhouses meets the needs of a variety of tenants. The housing is offered at
below-market rent to households with low incomes. BHC's properties are
primarily in the inner and middle suburbs, but BHC's Constitution will allow it
to operate anywhere in the city.
BHC is
structured to be tax efficient and ensure residents' access to Commonwealth Rental
Assistance. The Company uses income from rent to manage and maintain its
properties, and any surplus is used to fund future expansion.
BHC is overseen
by an experienced Board of Directors who work through a number of functional
committees. The day-to-day management of the Company is carried out by an
experienced team of staff. BHC is the product of joint funding by the two
spheres of government, i.e. 60% from the state of
3.4.2 Social outcomes
- 100% of
occupants are sourced from the public housing waiting list as administered
by the Queensland Department of Communities.
- Low and
very low-income households are assisted.
- Only 2%
of residents pay more than 30% of their income for rental.
- Buildings
are constructed close to public amenities.
- Rental
does not increase as salaries increase, as is the case with the Social Housing
(SH) Model.
Day
2
3.5 Office of the
Commissioner for Body Corporate and Community Management
3.5.1
Function and mandate
The Body Corporate and Community Management (BCCM) Act, 1997, serves as
The BCCM Act establishes an Office of Commissioner for BCCM and provides for the
appointment of dispute resolution officers to settle individual disputes.
However, the Department of Justice and Attorney-General is the
The Office of the Commissioner for BCCM is tasked by the Act to provide
an information and dispute resolution service for the community titles scheme industry
in
During 2009/10, a total of 1 378 applications were lodged, of which 1 357
were resolved, resulting in a resolve rate of 98.5%. On average, 75% of
conciliation applications were resolved by agreement. Less than 0.5% of orders
from the Office of the Commissioner were overturned or altered on appeal. Less
than 10% (i.e. 7.3%) of lodgements were pending finalisation after more than 6
months from them being lodged.
3.5.2 Staffing and finance
The Office of the Commissioner in its current location is grouped with
similar services under the Justice Services of the Department of Justice and
Attorney-General. Its current alignment falls within the quasi-judicial
services, which includes the Queensland Administrative and Civil Tribunal
(QCAT).
Administratively, the Commissioner reports to the Attorney-General. The Office of the Commissioner for BCCM
is not governed by a Board (see organogram of office attached (Appendix A)). Key
duties and responsibilities of the Commissioner include amongst others (see
Appendix B):
á
Strategic organisational leadership.
á
Managing the staff and resources of
the CommissionerÕs Office.
á
Consulting, negotiating and engaging
with key internal and external stakeholders, etc.
Whilst the Office of the Commissioner employs a minimum number of staff
members, it yields maximum performance results. The Commissioner is supported
by a Manager tasked with leading and managing the conciliation service in the
Office of the Commissioner (see Appendix C). In addition, a Principal Case
Manager is responsible for case managing dispute resolution applications, and
leads and supports the administrative team in the Office (see Appendix D).
Further, a Senior Case Manager may be appointed on either a permanent or a temporary
basis and tasked with providing information to community members and
stakeholders, as well as to action the directions of Adjudicators (see Appendix
E).
The Office appoints both full-time and part-time conciliators, while
adjudicators are employed on a part-time basis. While not all conciliators may
have a legal background, adjudicators are expected to have legal training. In
particular, adjudicators are expected to have proven experience in litigation,
alternative dispute resolution or adjudication skills, preferably in a
community schemes environment (see Appendix F). Adjudicators have to adhere to
the BCCM Adjudicators code of conduct, which includes respect for the law,
fairness, independence, respect for others, diligence, efficiency, integrity, and
accountability. Conciliators should have experience in facilitating alternative
dispute resolution methodologies such as mediation, or conciliation, preferably
in a legislation based dispute resolution context (see Appendix G).
The Office also employs information officers tasked, amongst others, with
developing information material for distribution, providing feedback to
management on the information and education needs of clients, and providing
information to community members and stakeholders. The Office provides relevant on-line
training, although the course is not accredited, as well as outreach seminars.
For this purpose, a full-time person is employed who is responsible for
maintaining the website and updating information.
The Office of the Commissioner is fully funded by government through the
Department of Justice and Attorney-General. While applicants for dispute
resolution services are required to pay a fee, it is minimal. Further, bodies
corporate are not required to pay a levy to the Office of the Commissioner,
since it is acknowledged that the industry would not be motivated to fund this
type of service.
3.5.3 Managing Bodies Corporate
Bodies corporate rules (or by-laws) are registered with the Registrar of
Titles, which is the South African equivalent of the Registrar of Deeds.
The body corporate budget must cover both an Administrative Fund and
Sinking Fund as regulated. The Administrative Fund covers necessary and
reasonable expenditure for maintenance of common property and assets,
insurance, recurrent expenditure e.g. pest inspection, weekly gardening etc.
The Sinking Fund should cover significant long-term expenses such as painting
the building and roof replacement (provided the body corporate is responsible
for either), pool refurbishing, resurfacing roadways, purchasing or replacing
body corporate assets (e.g. ride-on lawn mower). The Sinking Fund should be
based on the following considerations:
á
Ensuring Òreasonable capitalÓ is
available.
á
A 10-year forecast.
á
Identification of common property
maintenance and cost.
á
Quotes obtained where relevant.
á
A formulated budget.
The most common types of disputes relate to general meetings (it is
critical that the issue of proxies be resolved), by-laws, owner improvements
and maintenance issues. Managing agents (or body corporate managers) and
caretaking service contractors are non-voting members at Annual General
Meetings.
3.5.4 Dispute Resolution Service
Disputes are categorised as complex or non-complex disputes. Complex disputes are heard by the
Queensland Civil and Administrative Tribunal (QCAT) or by the Specialist
Adjudicator (by agreement). Complex disputes are defined as:
á
Application to change lot
entitlements.[1]
á
Terms of service contracts.
á
Forced transfer of management
rights.
á
Contractual matters.
á
Exclusive use by-laws.
Appeals on a point of law are referred to the District Court. The
following dispute resolution process is therefore followed:
1. Internal resolution
The BCCM Act, in most instances, requires an applicant to have attempted
self- resolution prior to making a conciliation or adjudication application. This
may include simply talking to the other party about the issue, writing to the
trustees of the body corporate (or committee), or presenting a motion for
consideration at a general meeting. If attempts at self resolution are
unsuccessful, an applicant may make an application for conciliation with the
BCCM Office.
2. Conciliation
Conciliation usually involves the parties participating in either a 40% face-to-face
meeting or 60% teleconference. The conciliation session is facilitated by a
conciliator. Only the people involved in the dispute are entitled to attend.
However, with the consent of the conciliator, an agent, legal representative or
support person may also attend the conciliation session. Bodies corporate may
be represented by two individuals with decision-making authority. The role of
each person attending the session will be outlined by the conciliator.
The role of the conciliator is to assist each party to understand the
views of the other party, clarify issues in dispute using joint and separate
sessions, examine the BCCM legislation and relevant adjudicatorÕs orders as they
relate to the dispute, assist parties to explore options and solutions, as well
as assist parties to reach a mutually acceptable agreement. Agreements can be
written and signed by all parties, and can include all or some of the issues already
discussed.
Conciliation agreements are not enforceable under the BCCM Act. However,
by mutual agreement, parties can request that an adjudicator provide a consent
order, which, if made, binds parties to the terms in the conciliation
agreement. If parties failed to reach an agreement, having made reasonable
attempts to do so, the applicant may make an adjudication application.
3. Adjudication
In most instances before making an application for adjudication, an
applicant must have attempted to resolve a dispute by internal (or self)
resolution and conciliation processes. The Commissioner may reject an
application for adjudication if the applicant failed to make a reasonable
attempt to conciliate.
Applications not considered appropriate for conciliation will include an
interim order, emergency expenditure and a declaratory order. Applications must
be submitted in a form as prescribed by the BCCM Office.
Applicants may write to the Commissioner outlining a proposed amendment
to the application, and set out reasons for the amendments thereof. If the
amendment is received after the dispute resolution recommendation, the
Commissioner may impose conditions (such amendments will be circulated at the applicantÕs
expense). An applicant may also withdraw the application by writing to the BCCM
Office, although the application fee will not be refundable.
The Commissioner may invite the body corporate and any party affected to
make a written submission in response to an application within a specific time.
The applicant, body corporate or trustee, or a person who made a submission on
the application, may apply to the Commissioner to inspect or obtain copies of
the application and all submissions, on payment of the prescribed fee. After
inspecting or obtaining copies of submissions, the applicant may make a written
reply to submissions within a specified period. The reply should, however, not
raise new issues, since it may delay the resolution process. Parties, other than
the applicant, do not have the right of reply.
The Commissioner must make an assessment of the most effective way to
resolve the dispute after the reply period has expired. The possible dispute
resolution recommendations that the Commissioner may include are:
á
Adjudication.
á
Departmental conciliation (as
outlined above).
á
Mediation.
á
Specialist mediation or
conciliation.
These will be discussed in more detail more below:
Adjudication
process
Referral to a departmental adjudicator within the BCCM Office involves no
additional cost, since it is included in the fee for lodging an original application.
The Act gives adjudicators wide investigative powers, including the power to request
information such as expert reports, to interview respective parties or other people
inspect. It also empowers adjudicators to investigate Body Corporate records, as
well as lots or common property in a community title scheme. After considering all relevant
documentation (as discussed above), the adjudicator makes a formal order
determining the dispute. Parties entitled under the BCCM Act will automatically
receive copies of orders.
An adjudicator may dismiss an application regarded as malicious or petty,
or if the applicant fails to comply with a requirement of an adjudicator. Costs can be awarded against an
applicant to compensate the other party for loss arising from an application
that is considered malicious or petty. Costs may also be awarded against a
party who is absent without reasonable explanation.
Departmental conciliation
The Commissioner may
recommend departmental conciliation (as outlined above).
Mediation
Mediation is seldom used since 2007. The Dispute
Resolution Centre (DRC) is a free service. On referral, the DRC will arrange a
meeting between the parties and a trained mediator. However, parties can use
this service any time before or after an application is lodged.
Specialist mediation or
specialist conciliation
This service may be appropriate where, for example,
the issues are of a complex contractual nature or require the expertise of a
qualified person, such as an engineer. Before the Commissioner can recommend
this option, parties must agree on the person to be appointed and who will be
responsible for the specialistÕs fees. Usually parties share the costs in this
regard. The Commissioner must be satisfied that the nominated person has
appropriate qualifications, experience and is in good standing to perform the function
in this regard.
If a dispute is not resolved by mediation or conciliation, the
Commissioner can make further dispute resolution recommendations. Anything said
or done at mediation or conciliation will be inadmissible in adjudication or
other proceedings thereafter. An adjudication order can be enforced at the
MagistrateÕs Court by the person in whose favour the order is made. The person
who contravenes an order commits a criminal offence.
The Commissioner does not have the authority to review an adjudicatorÕs
decision. An order may, however, be appealed in the QCAT on a question of law
by an aggrieved party. Such appeal must be initiated within 6 weeks of the date
of the order, unless a late referral is allowed by the Court on application by
a prospective applicant.
3.6
3.6.1 Situational Analysis:
About a third of the accommodation in
3.6.2 Residential Tenancy Authority
operations
The Residential Tenancy Authority (RTA) administers the Residential
Tenancies and Rooming Accommodation Act of 2008. The RTA is an independent and
impartial government organisation that assists tenants and lessors
(landlords/agents) to understand their legal rights and responsibilities as set
out by the Act.
The RTA provides the following
support services:
Client Contact Centre
This service provides information to tenants and lessors/agents about
their rights and responsibilities, and their rental bond (deposit).
Rental Bond Service
A rental bond
(deposit) is money that the tenant pays at the beginning of a tenancy while the
lessor/agent can claim if the tenant owes money for outstanding rent, damages,
or other costs associated with the end of the tenancy. The rental bond is not
the same as paying rent in advance.
Prior to 2008
when the Residential Tenancies and Rooming Accommodation Act was passed,
lessors/agents could request that a tenant pay a rental bond. This resulted in numerous
challenges including the fact that interest earned was not transferred back to
the tenant, as well as disputes about refunds.
Rental bonds are not compulsory. However if one is requested, it must be submitted
to the RTA for safekeeping within 10 days of receipt. The lessor/agent is
unable to take any money from a prospective tenant (including a bond) until
they have been given a copy of the proposed agreement, as well as any body
corporate rules or by-laws which form part of the agreement.
The maximum bond that a lessor/agent can charge is equivalent to 4 weeksÕ rent
if the rent is A$700 a week or less. If the rent exceeds A$700 a week, there is
no limit on the bond that could be requested.
While in
When a bond is paid, the lessor/agent needs to:
- Immediately provide the tenant with a receipt
for the bond money.
- Complete a bond lodgment application form as
drafted by the RTA - the tenant needs to sign this form.
- Submit the money with a completed and signed bond lodgement form to
the RTA within 10 days of receipt.
If a
tenant cannot afford the bond, the lessor/agent may allow payment in instalments,
or the tenant may access a bond loan from the Department of Communities.
The RTA holds the bond while the tenant lives in the accommodation, and refunds
it when the tenant moves out (provided there is no disagreement). The RTA will
send a notice (called an official receipt) to advise when the bond has been
received. It has the rental bond number on it, which will be required
if they contact the RTA about the bond. If a receipt has not been received
within a few weeks, the tenant should contact the RTA to check whether the bond
money has been received. A penalty may apply to the lessor/agent if they do not
submit the bond money to the RTA within 10 days.
The RTA earns and retains the interest on the deposits held, which is its
sole source of revenue. In the event of disputes about the paying of deposits
to tenants, the RTA will refund amounts on QCAT instructions. Refunds are also
done through post offices and take approximately 15-20 minutes in the event of
no disputes.
Dispute
Resolution Service
The service provides assistance to tenants, lessors or agents in the
event of disputes. The dispute resolution
process includes self-resolution and dispute resolution.
If parties are not been able to resolve a dispute
and it is not classified as an urgent application to the QCAT under the Residential Tenancies and Rooming Accommodation Act, 2008,
it is possible to apply to the RTA for assistance. However, the RTA cannot
compel parties to participate in conciliation process.
The
RTA's Dispute Resolution Service consists of a team of trained conciliators.
Their role is to listen to concerns, provide information on the Act, and assist
parties in resolving the issues or disagreements. Disputes may be about matters
relating to the rental bond or to a tenancy or residency agreement.
Conciliation
If
self-resolution has been unsuccessful, conciliation conducted by the Dispute
Resolution Service is the second step that might help parties to reach an
agreement. Legal representation is discouraged for the conciliation process.
The
conciliator will provide information on the relevant laws, which provides all
parties a better understanding of their rights and responsibilities.
Conciliation
can happen via:
- A telephone 'shuttle'
negotiation service, where RTA conciliators hold separate telephone
discussions with each of the parties in dispute.
- Face-to-face meetings.
- Three-way teleconferences.
The
conciliator can provide a written record of any agreements that are reached
through the conciliation process. These agreements will then become part of the
residential tenancy or rooming accommodation agreement. The QCAT can enforce
these agreements, if necessary. The RTA successfully resolves over 65% of all
disputes where parties participate in conciliation.
There
may be instances where the RTA may decide not to provide a conciliation service
to parties involved in a dispute. This can occur if the RTA considers the
dispute unsuitable for conciliation. If the RTA decides not to conciliate a
matter, a notice of unresolved dispute will be issued. This will allow a party
to apply to the QCAT to have the matter determined.
Investigations
Unit
The RTA investigates and prosecutes offences under legislation when
appropriate.
Day 3
3.7
3.7.1 Situational
analysis of homelessness
The Brisbane Homelessness
Service Centre (BHSC) aims at finding sustainable
solutions for people who are homeless, or for individuals and families
who may become homeless without support. It provides emergency accommodation in
either hostels or private boarding houses.
Despite the existence of a
social housing policy, in reality demand exceeds availability of housing. People may therefore have to wait between
12 to 18 months before accessing social housing. Homeless individuals or
families may experience a challenge of accessing housing due to affordability
and availability. Individuals and families may also be blacklisted due to poor
payment or bad tenancy, and therefore struggle to acquire accommodation. The Centre employs highly skilled people
to work in the community, since most of its work deals with people with social
problems. During 2010, the Centre assisted
a total of 377 families.
3.7.2 BHSC operations and scope
Micah Projects Incorporated
is the lead agency at BHSC with Micah Homelessness Services
providing a range of centre-based and outreach support services to individuals
and families. BHSC is located in inner-city
- Information and support to
access crisis accommodation and long-term housing, or to prevent
homelessness.
- Proactive outreach to people in
public spaces who are intoxicated or sleeping in public spaces and are vulnerable.
- Primary health care, personal
care and domestic support.
- Opportunities for employment
and to participate in recreational and sporting activities.
- Proactive support to people
with a disability and to families, who are at risk of homelessness, to
maintain their housing and create a home.
Co-located partners
(services located together at BHSC) are
the Centacare South West Brisbane Community Options Project, The Big Issue,
The Centre reported that it has
recently experienced the following shift in clients accessing it services:
á
An increasing number of families, instead of single persons,
presenting at the Centre.
á
Women over the age of 45 years who are victims of domestic
violence, instead of previously very young women and adolescents.
á
Instead of unemployed people only, an increasing number of
people who are employed, but unable to afford accommodation are sleeping in
their cars and accessing services at the Centre. These are referred to as Òthe
working poorÓ.
3.7.3 Policy
implications for homelessness
BHSC defines a Òhigh-needÓ
individual as someone who sleeps on the street, and whose vulnerability is
compounded by another condition such as illness, mental health condition, etc.
Homeless clients often remain
untreated for a condition for a considerable period; hence BHSC provides a
range of services. Clients in need of in-patient services generally resist
being admitted to hospital due to prevailing negative attitudes towards
homeless people in hospitals.
BHSC values interaction with police
as an important stakeholder, resulting in police not targeting the Centre, as
well referring people in need of accommodation to the Centre. Government is
beginning to focus on outcome-based performance in terms of its services that
are funded from the state revenue. This approach provides recognition for the
work of the Centre.
A key challenge with current
government policy is that it funds housing, but does not fund the support
services people may require. It is important to keep a previously homeless
person in housing through follow-up with treatment where it is required, as
well as support. Support is critical to someone who experiences a trauma. A person
who spent a considerable period living on the street, or Òcouch-hoppingÓ, i.e.
sleeping with different friends each night, may experience a sense of
loneliness and isolation after finally having settled into his or her own
accommodation.
BHSC invests in a high level of
advocacy through its Common Ground Project which seeks to achieve social
integration for residents of
3.8 Foresters Community Finance
3.8.1 Principles and philosophy
Foresters Community
Finance (FCF) Institution was established on the Friendly Society Condition,
i.e. the equivalent of ÒstokvelsÓ in
- Building skills and knowledge.
- Investing in their asset base.
- Accounting for both
the financial and social returns on these investments.
The work
of FCF is guided by the principle that a strong and independent civil
society is crucial to a dynamic and vibrant democracy. Such organisations
play a central role in the strength and fabric of civil society through their
diverse structure and practice. Community Finance, as the name suggests, refers
to finance for community development initiatives. Community Finance
focuses on channelling capital into underserved markets where there
would be difficulty in securing finance from mainstream financial markets.
FCF has
been delivering finance and investment to the community sector for over 15
years. This capital is used to build the assets of community service
organisations. These assets include buildings, which have been used to
deliver community services, and residential properties which have been used to
deliver affordable housing. In
addition, it provides equipment finance to support the growth of social
enterprise and social businesses.
For example, FCF funded a community living association for people with
learning and intellectual disabilities. Subsequently it also funded two social
enterprises which employ residents living in the association, i.e. care-taking
enterprise, as well as landscaping business. Further, when FCF realised that a clientÕs
employees needed accommodation, it funded a housing co-operative in order for
clients to purchase their own lots.
3.8.2 Services rendered to organisations
A
Community Asset Building Appraisal provides a community sector organisation with
an overview of its financial position in relation to securing funds to purchase
assets. This assessment is the beginning for most FCF work with community
service organisations. At the end of the assessment an organisation will
know whether it can access community finance or social investment.
Planning for Asset Acquisition
FCF assists
community sector organisations at various stages in their consideration of
asset development. Some organisations may identify a property that they would
like to purchase, while others may just explore possibilities. FCF
encourages management to consider how an asset could help to achieve its
organisationÕs social mission through discussion and planning across all levels
of the organisation. FCF would also manage the asset acquisition process,
including contract negotiation and due diligence.
Community Capital Raising and Asset Acquisition
FCF is in
the business of raising social investment capital. One of the ways to achieve this
is through actively engaging with the community sector to raise capital for
asset building through the networks of community sector organisations.
Day 4
3.9 Hornery Institute
3.9.1 Objectives and philosophy
The
Hornery Institute is an independent non-profit organisation dedicated to
enhancing the wellbeing of communities through positive social, economic and
environmental change. The Institute's charter is to help make communities
better places to live, learn, work and play. Based in Brisbane, the Institute
is working actively throughout Australia to pursue opportunities in the
property, resource and infrastructure sectors where it can assist government,
business and the community to work together to deliver long-term outcomes that
benefit all stakeholders.
The
Institute works on the principle of creating socially sustainable and inclusive
communities, where all people feel valued, their differences respected and
their basic needs met so they can live in dignity.
3.9.2 Business model
The
following diagram outlines the InstituteÕs approach to place-making strategy:
Place making and Community Development Ð Methodology and key
concepts
achievable
and deliverable way - promoting sustainable and long-term outcomes, not Òquick
fixesÓ.
3.9.2 Business approach
The
InstituteÕs business model is based on charging normal rates to developers for
services rendered, while surplus funds are transferred into a trust fund for
communities.
The
InstituteÕs interest lies in how development and planning can maximise
opportunities for communities to develop. As such, it would be involved in
various stages of a project, i.e. the pre-feasibility stage, pre-planning,
planning, and implementation. The work of the Institute during the pre-planning
stage involves considering key questions such as: Who will live in the community
to be developed, what would be their profile (age, gender, religion, culture,
lifestyle etc.), land use considerations, type of community engagements
required, etc.
Over the
last few years, the availability of affordable housing declined significantly
in the inner city. The state government has therefore developed the legislative
framework, which encourages developers to put in place affordable housing.
Innovative approaches include government providing incentives to developers
such as land and additional floors for high-rise buildings. Government would
negotiate with developers to set aside floor space in order to purchase units
for affordable housing. This approach ensures that buildings earmarked for
affordable housing do not only house a certain segment of society, such as
single mothers, but also achieve mixed profile buildings. This may include
professionals and two-parent households. The Hornery Institute advocates this
approach since it ensures that no stigma is attached to affordable housing.
It uses
innovative ways to understand how communities operate, such as the Maslow
Hierarchy of Needs Motivational Model, initially developed by Abraham Maslow
during the 1940s and 1950s (see diagram below).
While conventional planning focuses on the basic life needs such as
shelter, warmth (and possibly safety needs), the Maslow model suggests that
belongingness, esteem and self-actualisation are important considerations for
creating sustainable and inclusive communities.
During the pre-planning stage of a project, the Hornery Institute could
work up to 5 years for a community before development starts. It invests
considerable time in advanced planning. For example, if a project requires
certain skill, instead of importing skilled workers from elsewhere it will
ensure that required skills becomes part of school curriculum for a relevant
community. By the time the project is implemented, the required skills are
available in the community. The Institute also recommends that government, and
not the developers, should maintain control of the development master plan,
thereby retaining ultimately control over the final product. Once development
starts, the Institute recommends that developers and partners introduce or set
up new agencies, as may be required by the communityÕs needs. Councillors
should be trained to deal with conflict in new developments, especially
initially as communities are coming to terms with each other. As part of the
planning process, new community structures should be set up to play a
leadership role in the community.
3.9.3 Case study:
The
The Institute was initially engaged to undertake a scorecard evaluation of the
structure plan for the site against a series of established key performance
indicators and report the long-term risk return profile of maintaining the
current strategic direction. The outcomes from this exercise were then used to
demonstrate to Cabinet and the QUT Senate how the performance of the asset
could be improved over time.
From its key recommendations, the Institute was subsequently commissioned to
develop an integrated master plan, incorporating strategies to achieve place
making, community and cultural development, and economic and social
sustainability outcomes. Activities included visiting schools and producing
short films about how learners saw their future community. After four years, the
work done by the Institute resulted in Kelvin Grove being acknowledged as a new
address in the city fringe, offering a lifestyle that is strongly associated
with creativity and learning. The early urban identity (or place brand)
developed for the project started to attract landmark occupants such as the
The Institute was further retained as the Community Development Manager with a
focus on delivering a Community Hub activated with learning and cultural
activities to encourage community participation and the development of social
capital between traditional and emerging audiences. This project proved
particularly significant with respect to brokering relationships between
students and non-student autiences as well as inter-generational programmes,
delivering supported information Technology (IT) access to non-computer owners
and delivering next generation cultural events to the local community.
This project is an important example of the InstituteÕs ability to operate in a
highly complex political environment and inclusive decision-making processes
that meet government requirements.
In
achieving the objectives of this project, the Institute engaged in the
following activities: Community and cultural mapping exercises, extensive
visioning work, audience segmentation, design and delivery of multiple
consultation and market testing programmes, high level stakeholder management,
project governance, master planning and place making, cultural development and
community activation.
Committee observations
- Mixed land use patterns, where
residential buildings are constructed side-by-side with corporate
buildings. In this way, the inner city does not become deserted at night.
- Units in residential buildings
are constructed to minimise the ecological footprint, i.e. each equipped
with a water tank to collect rainwater for household use.
- The concept of ÒdeadÓ spaces
and Òliving spaces". For example, utilising the lower levels of the
QUT buildings for shops and restaurants (human activity). In this way,
corporate buildings are incorporated into the community for residential
use and benefit.
- QUT buildings are not
concentrated, but spread across the neighbourhood, effectively fully
integrated with the community.
3.10 The
3.10.1 Dispute resolution services
QCAT is the product of an amalgamation of 23 previously separate tribunals,
and commenced operations on 1 December 2009. The South African parliamentary
delegationÕs visit to QCAT offices therefore coincided with the tribunal commemorating
its first year of operation.
QCAT seeks to encourage the early and economical resolution of disputes.
Its objective is to provide a service that is accessible, fair, just,
economical, informal and quick. QCAT makes decisions on a range
of matters for the first time known as Òoriginal decisionsÓ. QCAT also
reviews decisions previously made by government agencies and statutory
authorities known as Òreview decisionsÓ.
QCAT is headed by a Supreme Court judge, who acts as its President,
while the Deputy President is also a judge. The President reports directly to
the Attorney-General.
QCAT makes and reviews decisions on a wide range of matters, which
include:
Domestic building disputes
This relates to disputes between a homeowner and a builder, and includes
contract disputes, whether work is defective, liability for defective work and
orders for rectification of defective work. In this regard, contract disputes
refer to whether money is payable, contract been terminated, and damages for
breach of contract),
Regulation
of building professionals
QCAT hears disputes relating to the following professionals, namely engineers,
architects, surveyors, builders, building certifiers and allied professionals.
As such, it would consider whether a professional is entitled to hold a licence
(whether the person is fit and proper, aware of current standards and
maintaining appropriate levels of financial accountability), as well as the
personÕs compliance with licensing requirements.
Manufactured
homes
This relates to homes that are purchased and ÒrelocatableÓ, while the
site is rented (also commonly referred to as trailer parks). This type of home
is marketed as a low- cost housing option, particularly for retirees, and
provides no security of tenure. QCAT has the dispute resolution jurisdiction for
the regulation of site rent, termination of site agreements, compensation
payable on termination of site agreements, park rules, site agreement, access
and alteration to manufactured homes.
Bodies corporate
The
Tenancy disputes
Currently tenancy disputes are responsible for about 30% of the QCAT
workload. QCAT jurisdiction relates to disputes about rent, bonds (or rental
deposits), deposits (fees), service charges, standard of accommodation, entry
to premises, and termination of rental agreements.
Retail shop leases
QCAT has jurisdiction for disputes arising from rental arrears, amount
of rent payable, amount of outgoings, obstruction/interference with trade, and
misleading conduct when entering into a lease.
Neighbourhood disputes
These relate to trees and fences.
Real estate agents
Disputes that may be heard by QCAT include entitlement to commission,
amount of commission payable, misleading and deceptive conduct/fraud, licensing
and disciplining of agents, and marketeering.
Retirement villages
QCAT administers dispute resolution between operators and residents in
relation to contributions, maintenance reserves, and termination of contract,
reselling, services and standard of accommodation.
3.10.2
Dispute resolution tools
The following tools are utilised in
the QCAT dispute resolution process:
á
Mediation.
á
Compulsory conferencing.
á
Case management.
á
Hearings.
á
Arbitration and mediation.
Day 5
3.11 Office of Public Trustee of
The Office
of the Public Trustee was established in 1916 through an Act of Parliament, and
is an agency of the
The
Trustee Office is self-funded through revenue raised from fees it charges for
its services. The Public Trustee is the second largest of its kind in
The Public
Trustee provides a range of services, including:
- Will-making
(this is a free service).
- Enduring
powers of attorney.
- Deceased
estate administration.
- Applications for probate for private
executors.
- Acting as administrator.
- Acting as financial attorney.
- Acting as trustee.
- Charitable Trusts, i.e. The Queensland Community
Foundation, Ford Foundation, Lady Bowen Trust, Queensland
Aboriginal and Torres Strait Islander Foundation.
- Auctions (motor
vehicle, house, general).
- Management of unclaimed
money, property and superannuation[2].
Particular advice service provided by the Public Trustee includes the
role of Administrator for adults with impaired capacity, when appointed by
QCAT. Services may include: managing matrimonial and personal injuries,
assistance when being sued for debts owed or transactions said to have been
entered into, investigating whether property or money has been illegally
misappropriated from these adults, advice and settling accommodation agreements
for adults with incapacity, etc. The
legislation governing the Office of the Public Trustee also provides that the
Public Trustee manages the estate (property) of any person convicted of direct
imprisonment and is serving a sentence of no less than three years. Prisoners
are often subject to claims for compensation by victims, and are increasingly
subject to claims by the State in respect of the proceeds of crime (the South
African equivalent of asset forfeiture).
The Public TrusteeÕs Investment Service provides advice and investment
solutions to the Office and its clients.
During 2009/10, the Office was responsible for A$1.17 billion in respect
of funds under management. During the same period, the Public Trustee
Investment Fund was worth A$476 million.
4. Implications and lessons for
Dispute resolution for community
schemes
Unlike the proposal in the South African Community Schemes Ombud Service
Bill, the Queensland Office of the Commissioner for BCCM is neither managed nor
controlled by a Board. However, it should be noted that while the Office of the
Commissioner for BCCM falls directly under the Department of Justice and
Attorney-General, the South African Bill proposes the establishment of a public
entity. Further, the Bill proposes a funding model that includes, amongst
others, levies collected from community schemes to fund the Community Schemes
Ombud Service. In the case of the Queensland Office of the Commissioner, the
service is fully funded by government, since it is acknowledged that the
industry would not be motivated to fund such service.
The Office of the Commissioner visited in
Generating
revenue for sustainable human settlements
The
The introduction of a scheme such as the RTA Rental Bond Service in
Regulating
the rental sector
The experience of the Queensland RTA has highlighted the need to review
current regulation of
Given the number of services provided to the rental housing sector by the
Queensland RTA, it calls for a review of current legislation, such as the
Rental Housing Act, as well as other mechanisms to ensure greater improvement
of the rental housing market in
Role of NGO
sector in human settlements sector
The NGO sector in
Important lessons for South Africa include the philosophy that existing
knowledge and models should be used in an innovative and creative way to ensure
that development and planning can maximise opportunities for communities to
develop. The Hornery InstituteÕs business model and approach to development
serves as an important best practice for
The strong partnership between the Brisbane Housing Company (BHC) and
the Queensland Department of Communities to ensure the availability of social
housing is another important lesson. The
In
The Brisbane Homelessness Service Centre (BHSC) advocates the concept of
strong partnerships with all relevant stakeholders to ensure a holistic
approach to address the plight of homeless people. Partnerships include
co-locating services (services offered at the Centre), visiting services, as
well as the police to ensure that the Centre is not targeted and that homeless
person encountered are referred to the Centre.
Policy implications
for a paradigm shift
The
The Hornery Institute also highlighted the need for government to retain
control over the master plan to ensure governmentÕs development objectives are
met. This is critical if government wants to achieve mixed land use and social
integration of households, instead of the concentration of low-income
households into a single suburb (community) or even a building. Developers may
not be motivated to share governmentÕs objectives of achieving social justice
and social integration. Therefore, the government must ensure it ultimately controls
the master plan, instead of handing over control to developers.
An important observation raised by the BHSC is that often government
policy is to fund housing, but that it does not fund the support such people
may require once settled into their own accommodation. While the BHSC comment
related specifically to homeless persons, it may also have relevance for
persons with a disability. There is, therefore, a need to further explore this
concept (and possible partnerships it may require) within the South African
context of sustainable human settlements.
5.
Recommendations
The delegation therefore recommends the following in relation to the
Sectional Titles Schemes Management Bill and Community Schemes Ombud Service
Bill:
- The
Department should make provision for the code of conduct for managing
agents related to sectional title management issues in the regulations
under the Sectional Titles Schemes Management Act.
- The
operation of both a maintenance fund and a reserve fund should become
mandatory for bodies corporate.
- Membership
of the Advisory Council to the ombud service should be reduced from seven
to five members.
- A dispute
resolution mechanism should include a conciliation process.
- The
issue of the number of proxies as well as the voting rights in annual
general meetings should be reviewed by the Department and provided for in
regulations under the Sectional Titles Schemes Management Act.
- The
issue of tenant participation in annual general meetings should be
reviewed by the Department and provided for in regulations under the
Sectional Titles Schemes Management Act.
- The
concept of establishing regional offices which is currently proposed in
the Community Schemes Ombud Service Bill should be accepted.
- The
operational experience on the functioning of the ombuds office will be
considered during the finalisation process of the Bill.
- A review
of the Rental Housing Act as well as other relevant Acts should be undertaken by the Department.
The delegation further recommends the following:
- A
future summit on sustainable human settlements should be held to discuss
how
- The
Portfolio Committee on Human Settlements should share best practices gained
from the Australian experience with the Constituency Whippery (Woodridge
constituency office and programmes), as well as relevant portfolio
committees such as Justice and Constitutional Development (Queensland
Civil and Administrative Tribunal and other tribunals), Trade and Industry
(Office of the Public Trustee), and Social Development (Brisbane
Homelessness Service Centre, services to persons with disabilities and
elderly by the Office of the Public Trustee).
- The promotion
of and extensive support measures for the NGO sector to become strategic
partners in development should be encouraged.
6. Conclusion
Lessons learned during the delegationÕs study tour to
Acknowledgements: The delegation would like to express its appreciation
to the Parliament of South Africa for approving this study tour, the Department
of International Relations and Cooperation (DIRCO), including the South African
Embassy in Australia, as well as the Minister of Human Settlements for availing
two legal advisers from the Department to share in new knowledge gained by the
study tour.
Report to be considered.
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