Pippen, Deborah --- "Security of tenure: Tenancy law reform" [2009] ALRCRefJl 33; (2009) 94 Australian Law Reform Commission Reform Journal 20

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Reform Issue 94 Summer 2009

This article appears on pages 20–23 of the original journal.

Security of Tenure

Tenancy law reform

By Deborah Pippen*

At a national level, much has been made recently of expanding access to affordable housing (including private rental housing), increasing stock in public and community housing and improving access to supported and emergency accommodation.

All of these developments are needed and not without their controversies, even down to the definition of ‘affordable housing’. However, the obvious problem that persists and has not been examined at the national level is the glaring inequity of people’s housing experiences in relation to housing rights and protection. The right to housing requires governments to recognise that all people have a right to secure, safe, affordable, appropriate housing—regardless of whether they own their housing; are paying a mortgage holder to one day own it; or are paying some form of rent. Furthermore, this right must be protected. But this right is not adequately protected in Australia. This article highlights the key issues addressing housing rights in terms of residential tenancy legislation.

Renter households

Renter households are those households that pay rent to live in a dwelling; this encompasses all forms of accommodation. When considering rental accommodation it is important to recognise that this is not an insignificant part of the population. In 2006, 28.5% (2,063,947) of Australian households were in some form of rental accommodation with more than 1.7 million households renting from private landlords and 369,000 households renting from state/territory housing authorities. A further 147,000 households (2% of all households) were renting from other landlords such as employers (including the Defence Housing Authority).^[1]

Residential tenancy legislation is under the jurisdiction of the states and territories. The history of the development of tenancy legislation in Australia demonstrates the status of tenants. As noted in an Australian Housing and Urban Research Institute Positioning Paper:

The various landlord-tenant laws in Australia were all originally inherited from the same source: the English law of the early 19th century. Government’s main concern at the time was protecting legitimate rights to ownership and possession. Thus when Australia adapted English residential tenancy law for domestic use it was heavily weighted in the landlords favour. It was not until the 1970s that Australian tenancy laws were reviewed in the context of housing conditions and outcomes.
... there is a heavy reliance on tenancy law to provide equity in landlord-tenant relations in Australia ... Tenancy protection in Australia today is based on principles of basic health-related housing standards, minimum notice periods for ‘no cause’ eviction, and limits on the frequency of rent increases ... Residential tenancy law in Australia has invariably sought to ‘balance the interests of tenants and landlords’ rather than to provide strong rental consumer protection ... Consequently, arguments about broader legal protections have been limited, and arguably contemporary residential tenancy law is still weighted in the landlord’s favour.^[2]

The need for national consistency in residential tenancy legislation to ensure minimum standards is by no means new. In 2004, in its overview of tenancy law across the country, the National Association of Tenants’ Organisations (NATO) recommended the development of national minimum standards for residential tenancy legislation.^[3] This reiterated NATO’s position in 1997, which in turn was a response to a 1995 report prepared for the Commonwealth Department of Housing and Regional Development.^[4] These reports demonstrated the disparity between states and territories in terms of levels of protection of basic rights to accommodation and access to dispute resolution mechanisms. The most glaring differences were—and continue to be—protection of people in forms of rental accommodation other than private rental and security of tenure.^[5] These two fundamental elements affect what other rights tenants might have and whether they are in the position to assert those rights. The table below demonstrates the level of disparity, with an overview of legislative coverage across the country as well as the level of security of tenure.^[6]

Australian Capital Territory New South Wales Northern Territory Queensland

Australian Capital Territory	New South Wales	Northern Territory	Queensland
Covers all residential tenancy agreements (public and private tenants). Some coverage of all other tenures including caravan parks, boarders and lodgers, student accommodation. Known as occupants. No cause termination: 26 weeks (182 days) for tenants. Limit doesn’t apply to occupants.	Covers all residential tenancy agreements (public and private tenants). Does not cover: caravan parks, boarders and lodgers, some other classes of dwelling. No cause termination: 60 days. 14 days at the end of the fixed term.	Covers all residential tenancy agreements (public and private tenants). Does not cover: caravan parks, or boarding houses where less than 3 boarders, holiday, emergency or charitable accommodation. No cause termination: 42 days.	Covers all private residential tenancy agreements (including long term caravan park residents). Separate legislation covers residential services such as boarding houses. Does not cover some other classes of tenure. No cause termination: 60 days.
South Australia	Tasmania	Victoria	Western Australia
Covers private and community housing residential tenancy agreements. Only certain parts of the Act apply to public housing residential tenancy agreement. Does not cover some other classes of dwelling. Includes boarders and lodgers. Residents of caravan parks are not covered. No cause termination: 90 days.	Covers all residential tenancy agreements. Does not cover some other classes of dwelling. Some caravan park residents may be covered. No cause termination: only at end of a fixed term lease. Anywhere between 14 and 28 days.	Covers all residential tenancy agreements plus rooming house residents. Some long-term caravan park residents are covered. Does not cover short-term caravan park residents and other classes of residencies. No cause termination: 120 days.	Covers all residential tenancy agreements (public, private and caravan park). Does not cover boarders and lodgers, or some other classes of dwelling such as nursing homes or hotels. Does not cover tenancies of less than 90 days. No cause termination: 60 days.

It is notable that there are single examples of both universal coverage of residential tenancy legislation (in the ACT) and very limited use of no grounds termination (in Tasmania). While there are issues with the practicalities of both of these elements in both jurisdictions, their existence would seem to indicate that such legislation is not detrimental to housing markets. However, the wide disparity across all jurisdictions does highlight the very different housing experiences across the country.

In the United Nations Special Rapporteur’s report on adequate housing as a component of the right to an adequate standard of living, the lack of consistent legislation was noted as a weakness in implementing and monitoring the right to adequate housing. The report also noted that,

legislation gives little regard to the rights of tenants. Tenancy laws and anti-discrimination acts are difficult to use due to the pressure of the market and the existence of ‘black-list’ databases. Other [laws], such as the anti-social behaviour amendments to the Residential Tenancies Act (NT), complicate the problem.^[7]

The Special Rapporteur also observed that legislation in most states and territories allows ‘landlords to freely evict tenants’.^[8]

The lack of any significant and consistent changes in tenancy legislation across the country as a whole is a clear indication that national leadership is needed to ensure that Australia meets its human rights obligations, as noted above. To date, federal Government involvement has been limited to an initial investigation culminating in the 1995 report for the Commonwealth Department of Housing and Regional Development.^[9] Currently the federal Government has limited its national rental housing policy considerations to affordability issues and public and community housing. References to general tenancy rights have been limited to recommendations in the White Paper on Homelessness^[10] to investigate the impact of lack of security of tenure and tenancy databases—but only in terms of homelessness, ignoring the wider implications of lack of security of tenure.

Consistent legislation can be achieved by adopting national minimum standards such as those detailed in the National Affordable Housing Agreement (NAHA), which currently lists as an aspirational objective that all ‘Australians have access to affordable, safe and sustainable housing that contributes to social and economic participation’.^[11] Notably, there is no reference to security of tenure. A basic element of such standards should be a clear commitment to universal coverage of tenancy legislation and security of tenure.

People who rent their homes without the coverage of tenancy legislation include those in educational, institutional, boarding and lodging, supported accommodation and nursing home accommodation. Often they are more prone to unjust treatment during their tenancy and generally have very limited resources and options for alternative accommodation. Without such protection these tenants have little to no recourse to legal dispute resolution mechanisms when there are problems—ranging from the need for urgent repairs, to harassment and ultimately eviction. Where there are legal remedies available via the formal court system, this is obviously well out of the reach of many because of limitations on their financial and other resources. As noted in NATO’s Leaking Roofs report:

It is essential that all tenants who have been granted the right to occupy residential premises as their principal place of residence be protected by tenancy legislation.^[12]

In relation to what housing rights are protected by tenancy legislation, security of tenure is fundamental. It has been described by the Centre on Housing Rights and Evictions (COHRE) as ‘one of the indispensable pillars of the right to adequate housing’.^[13] Tenure is linked to many other aspects of a person’s experiences of home and, therefore, life. When a person feels secure where they live, they are more likely to actively participate in the community because they feel part of that community. They are more likely to take an opportunity to improve their homes, confident that they will not then have to leave until they wish to, or there is a clear and reasonable basis to do so, with the possibility of an independent arbiter if there is a dispute. On a more individual level, they are more likely to have positive experiences in terms of participating in work and education; have better health outcomes in relation to stress related problems; and even be more likely to undertake long-term planning. They are also more likely to assert other rights, without fear of the ultimate retribution of losing their home. As also noted by COHRE, ‘without security of tenure, the full enjoyment of housing rights is not possible, and forced eviction can become a real and perpetual threat’.^[14]

While there are many issues that are crucial to a person living in rental accommodation enjoying the same level of housing rights as those in other tenures, security of tenure must be the starting point for tenancy law reform.

* Deborah Pippen is the Executive Officer of the Tenants’ Union ACT. She has spent all her working life in the community sector, with the vast majority of time spent in housing and tenancy related roles.

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[1] Australian Bureau of Statistics, Australian Social Trends, 2008 – Renter Households, <www.abs.gov.au/> at 14 September 2009.

[2] T Seelig and A Morris, Motivations of Investors in the Private Rental Market, Australian Housing and Urban Research Institute, Positioning Paper No 87 (2006), 9.

[3] H Blunden, C Martin and the National Association of Tenants’ Organisations, Leaking Roofs—Australian Tenancy Law (2004).

[4] R Kennedy, P See and P Sutherland, Minimum Legislative Standards for Residential Tenancies in Australia, Commonwealth Department of Housing and Regional Development (1995).

[5] Tenancies are terminated only where grounds exist as prescribed by legislation; appropriate notice is served and a Tribunal determines that ending the tenancy is justified.

[6] H Blunden, C Martin and the National Association of Tenants’ Organisations, Leaking Roofs—Australian Tenancy Law (2004), 18.

[7] UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari, Mission to Australia, 11 May 2007, A/HRC/4/18/Add.2.

[8] Ibid.

[9] R Kennedy, P See and P Sutherland, Minimum Legislative Standards for Residential Tenancies in Australia, Commonwealth Department of Housing and Regional Development (1995).

[10] Department of Families, Housing, Community Services and Indigenous Affairs, The Road Home: A National Approach to Reducing Homelessness (2008).

[11] Council of Australian Governments, Intergovernmental Agreement on Federal Financial Relations, Schedule F – National Affordable Housing Agreement <www.coag.gov.au >, at 30 September 2009.

[12] H Blunden, C Martin and the National Association of Tenants’ Organisations, Leaking Roofs—Australian Tenancy Law (2004).

[13] Centre on Housing Rights and Evictions website <www.cohre.org/view_page.php?page_id=89>, at 30 September 2009.

[14] Ibid.