IN MOST JURISDICTIONS IT’S ‘AIDING & ABETTING’; IT’S CRIMINAL

As part of her 2020 re-election campaign, and in line with her post-COVID recovery plans, Mayor of Paris Anne Hidalgo announced that she intends to hold a referendum on Airbnb and other short-term rental operators. Hidalgo’s aim is to see some 30,000 homes returned to the long-term rental market and Parisians living once again in their city. (As at 20 August 2020, Sydney had 31,400 Airbnb listings.) “The vote is likely to take place in autumn.” Two days ago, Europe’s top court upheld the French law requiring municipal authorisation for short-term rentals by platforms like Airbnb. French authorities, plus authorities in some 22 other European Cities, are now free to continue issuing fines on those who break the law; the Court’s decision is here. (The Court did express some doubts – see below* - about the compatibility of French law with EU law and has referred this question for judgment.) Mayor Hidalgo wrote:

“Combating the long-term rental housing shortage constitutes an overriding reason relating to the public interest justifying such legislation.”

San Francisco has ordinance that prohibits Airbnb from collecting booking fees on any housing that does not have authorisation or is certified to operate on a commercial short-term rental basis. San Francisco’s legislation was upheld by the US Federal Court. Other US Cities adopted the legislation. Airbnb subsequently sued against the legislation - and lost. This model legislation has also been adopted by Boston, Washington and Los Angeles.

San Francisco’s initial aim was to ban Airbnb from listing illegal rentals. In Airbnb’s counterclaim against the City it presented US case law precedence, arguing that such a rule would run contrary to the Federal Communications Decency Act of 1996 (CDA). San Francisco’s City Attorney again counter argued, preserving the City’s intent, while still adhering with the CDA. Airbnb is allowed to list – and rent – anything it wants, legal or not. Critically though, it may only make money if the rental of property complies with legislation. In essence, San Francisco is regulating commerce, not commercial speech, advertising or the postings of Airbnb’s operators. In the US, San Francisco and its Residents community group, ShareBetter SF are lauded as the architects of platform accountability, with San Francisco’s City Attorney credited as engineering the process by which Airbnb, Expedia (Stayz) and others are now held to account.

With tens of thousands of illegal Airbnb rentals, there is no way cities, such as the City of Sydney, can or will take action against every illegal operator or listing. Were the San Francisco model passed here in NSW, this would radically alter Airbnb’s power imbalance and its complete lack of accountability, limiting Airbnb and its cronies to profiting from accredited, licensed accommodation only.

When the legislation became effective, San Francisco’s Airbnb listings crashed by more than half, and by more than two-thirds in Boston. The legalisation is essentially the same model that requires Taxi Companies and Rental Car Agencies to verify that drivers hold valid licenses. Our Residents Community Group, Neighbours Not Strangers, has put this proposal to NSW State Ministers in earlier submissions. All has been ignored. Why wouldn’t NSW Legislators and Parliamentarians rush to introduce platform accountability?

On September 2018 NSW, ‘Manager, Ministerial Services’ for NSW Attorney General Mark Speakman SC MP, wrote (MAPS18/4260):

“While I appreciate your concerns, the Attorney General’s role as First Law Officer of the State is to advise the Government and Cabinet on legal, constitutional and legal policy issues. This role does not extend to the Attorney General’s involvement in matters where legislation grants governing authority to another Minister.”

In relation to illegal short-term rentals, NSW Ministers Rob Stokes (Planning) and Kevin Andrews (‘Better’ Regulation) do not address matters or directly answer questions put to them. City of Sydney’s Senior Solicitor will not take telephone calls, nor will City officials act upon written requests from Residents who seek Council action on illegal Airbnb activity.

The NSW State Government’s DestinationNSW (VisitNSW and VisitSydney) – along with an unknown number of local and foreign-based booking platforms – are facilitating illegal activity. In most jurisdictions, such action is called ‘aiding and abetting’ and it is a criminal activity. What says our NSW Attorney General? And what say the Board Members of DestinationNSW?

* …il importe, aux fins de cette disposition, de vérifier si, à défaut d’indication suffisante dans la réglementation nationale, les autorités locales concernées ont précisé les termes correspondant à la notion en cause d’une manière claire, non ambiguë et objective, de sorte que la compréhension de cette notion ne laisse pas place au doute quant au champ d’application des conditions et des obligations ainsi arrêtées par ces autorités locales et que ces dernières ne puissent pas faire une application arbitraire de cette même notion. Une telle vérification est essentielle compte tenu tout particulièrement du fait que la question de la clarté de la notion en cause se pose dans le cadre d’une procédure à laquelle devrait s’appliquer le principe général du droit de l’Union de légalité des délits et des peines (arrêt du 3 mai 2007, Advocaten voor de Wereld, C‑303/05, EU:C:2007:261, point 49).