By Chris Martin.
Originally published in Parity, the journal of the Council to Homeless Persons.
Australia is currently going through a period of unusual activity in residential tenancies law reform. New South Wales, Victoria and the ACT have recently concluded reviews and amended their legislation, and Queensland, Western Australia and the Northern Territory are currently in the midst of reviews. South Australia and Tasmania reviewed and amended their respective Acts a little before the current wave of reform, both in 2013. The federal government has also indicated its interest, nominating ‘tenancy reform that encourages security of tenure in the private rental market’ as a ‘national housing priority area’ under the current National Housing and Homelessness Agreement (Schedule A2). And breaking over the current wave of law reform are the COVID-19 emergency amendments, implementing eviction moratoriums and temporary regulations around rents.
This article considers the current wave of reform in the longer context of the development of Australian residential tenancies law since the nineteenth century – although, as we will see, the term ‘residential tenancies law’ really dates from the 1970s, when it signified a paradigm shift from previous ways of governing the relationship between landlords and tenants.
The nineteenth century
When the Australian colonies formally received English law in 1828, landlord-tenant law was very much a creature of property law, and concerned more with the formal requirements of valid leases (for example, a lease had to grant a right to possession of land, in writing, and for certain term), than with whether property was used for housing or other purposes. The content of leases was directed to tenants having ‘quiet enjoyment’ of the property, and landlords receiving rent – backed by the drastic remedies of ejectment (eviction) and distress. The latter allowed the landlord or agent to forcibly enter the property and take the tenant’s personal belongings to sell or ransom.
Over the course of the century colonial parliaments passed laws to expedite court processes for ejectment, standardise some common lease terms and, during the 1890s depression, introduce some restrictions on the use of distress. Landlords themselves developed the law too, particularly by adding lease terms against ‘nuisances’ and non-residential uses that reflected developments in sanitary regulation.
Twentieth century rent and eviction controls
In the early twentieth century – particularly during the First World War – numerous governments across the world began imposing further controls on landlords, particularly regarding rents and evictions. Rent and eviction controls reflected a new preparedness for states to directly govern economic processes – although they were often contested politically. In New South Wales, rent controls were first imposed by the Fair Rents Act 1915 (NSW), which limited rents to six per cent of a property’s value, followed by prescribed limited grounds for termination in 1926; these measures were partly lifted in 1928, and wholly lifted in 1937, with some short-lived emergency rent reduction and eviction postponement measures also introduced in the 1930s Depression. Rent and eviction controls did not, by themselves, change the pre-occupation of landlord-tenant law with property law formalities, and while in some respects they made specific provisions regarding residential leases, rent and eviction controls did not address important housing issues – in particular, repairs. A few housing-specific reforms were introduced by Australian jurisdictions around this time, such as prohibitions on discriminating against residential tenants with children, and abolition of distress (e.g. NSW, Western Australia).
In 1939, national rent and eviction controls were imposed for the duration of the Second World War, and some states continued to apply them in the post-war reconstruction period. In New South Wales and Victoria, in particular, controls continued longer, although through the 1950s and 60s they began to roll back their application such that increasing numbers of properties and tenants were excluded.
Generally, post-war governments looked to expanded homeownership and public housing, rather than tenancy law, as their preferred instruments for improving housing conditions and affordability. To this end governments subsidised finance for home purchase and directly built hundreds of thousands of dwellings – both for rent and sale to low-income working-class families. Where they applied, rent and eviction controls contributed to the growth of home ownership, by repressing investment by private landlords, while state housing authorities were exempt from controls and offered leases on the barest terms – public housing tenancies were relatively secure and affordable as a matter of policy and practice, rather than law.
Residential tenancies and the consumer protection paradigm
By the late 1960s and early 1970s, researchers, activists and policy-makers began to look more critically at the presumed affluence of the post-war period, and began to see sections of the community that had been excluded. In 1972, the federal government established a wide-ranging Inquiry into Poverty, which would include a report specifically on ‘Poverty and the Residential Landlord-Tenant Relationship’. Reviewing the existing patchwork of rent and eviction controls, older statutes and common law, the report found:
the law is sadly deficient in most of the relevant areas of tenant needs. No advice or assistance is provided for a prospective tenant by any governmental agency in any State, there is no legislation to ensure that the tenant is not bound by onerous and oppressive terms in a lease, and the means of solving any dispute between a landlord and tenant are far from fair and sensible and are based on conditions relevant to a bygone era in the United Kingdom…. The existing legislation also fails to satisfy fully the needs of the landlord….
It is not overstating the case to say that the current body of landlord-tenant law in Australia is a scandal….
Deliberately turning away from English property law doctrines and from rent and eviction controls, the Bradbrook Report instead looked to recent law reforms in North America and emerging principles of consumer protection for a new regulatory model specifically for residential tenancies. The main features of the model would be:
- Prescribed contractual rights and obligations, including regarding repairs and maintenance, in standard form agreements;
- Prohibition of most fees other than rent, utilities and bonds – the latter to be lodged in statutory accounts;
- Market rents, subject to protections against increases excessive to market levels;
- Ready but orderly termination of tenancies – including without grounds;
- Dispute resolution by relatively accessible, informal tribunals;
- Coverage of private and public housing tenancies alike; and
- Provision of legal information for tenants by government and/or non-government organisations.
As much as this model was framed as consumer protection, it was also quite accommodative of Australia’s small-holding amateur-speculator landlords, particularly in the way it allowed tenancies to be terminated and properties traded between rental and owner-occupier markets.
It would take almost 25 years, but all Australian states and territories enacted residential tenancies legislation along these lines (South Australia was first, in 1978; the Northern Territory was the last, in 1999). Despite the broadly common features, there were significant differences in the details. Notice periods for rent increases and termination varied widely; some jurisdictions established specialist tribunals while others used their magistrates courts; some established government agencies to hold bonds while others required lodgement at banks; and the commitment to funding non-government tenants information and advice services was uneven.
The second wave of consumer protection
Before the last reforms of the first wave had passed, a second wave of reforms commenced in the 1990s and continued through the first decade of the 2000s. Mostly consolidating the consumer protection model, this wave had three notable themes. First, most jurisdictions extended consumer-protection style regulation to marginal sectors that had been excluded from the first wave: boarding and rooming houses, and residential parks. The approach in most jurisdictions was to legislate, either as part of the Residential Tenancies Act or separately, something like a miniature Residential Tenancies Act tailored for each of these sectors, with prescribed terms and standard forms, and accessible dispute resolution, subject to a defined scope that still left some renters excluded. A different approach was taken in the ACT, which legislated broadly-stated ‘occupancy principles’ for all renters otherwise excluded from the mainstream of the Residential Tenancies Act.
Secondly, residential tenancy databases, which had emerged in the early 1990s and became notorious as ‘tenant blacklists’, were eventually regulated in all jurisdictions. These regulations limit the circumstances and time periods for listings, and provide for dispute resolution, and are unusual in residential tenancies law in that they are almost the same across jurisdictions – the product of a process of intergovernmental co-operation to effect nationally consistent legislation that is so far unique in residential tenancies law reform.
Thirdly, and running against the original consumer protection ethos of residential tenancies legislation, jurisdictions began making amendments specifically relating to public housing and community – mostly to facilitate the termination of tenancies as a way of ‘cracking down’ on crime and anti-social behaviour in an increasingly marginalised sector.
The third wave
The current third wave of reform is taking place in quite different circumstances from the Poverty Inquiry that initiated the first wave. Home ownership, as well as social housing, is declining, with more households – both high-income, and low-income – living in private rental, and renting longer into their lives. Recent and current reviews have reflected these shifts, by highlighting questions of improvements to tenants’ security – through specific provisions for long fixed terms or through the removal of ‘without ground’ terminations – and greater tenant autonomy, such as in keeping pets. The jurisdictions that have already completed their reviews have concluded these issues differently, with Victoria amending its Act to almost completely remove without-grounds terminations and strengthen tenants’ position regarding pets, while the ACT did only the second, and New South Wales neither.
Another recent common theme in reform is domestic and family violence, with most jurisdictions having recently amended their legislation to address the housing implications of DFV. But even as they have prioritised this area of reform, governments have arrived at quite different positions regarding the processes and evidentiary requirements for survivors terminating tenancies early, or continuing and removing a perpetrator, and regarding vicarious liability.
It remains to be seen whether the ongoing reviews in Queensland, Western Australia and The Northern Territory produce a relatively strong reform agenda like Victoria’s, or a more ‘vanilla’ program of amendments like New South Wales’. The outlook is now complicated by the COVID-19 pandemic and recession, which also threw up their own specific emergency reforms.
Beginning in March 2020, Australian governments and individual persons responded to the COVID-19 pandemic by suppressing economic and social activity – by staying home. With household incomes suddenly reduced, and the prospect of rent arrears rising, the National Cabinet announced an unprecedented six-month eviction moratorium, and encouraged landlords and tenants to negotiate about rent liabilities, with the states and territories to give this formal effect.
As in other aspects of residential tenancies law, states and territories have taken a broadly common approach, with considerable differences in the details. The commonalities are narrowly defined protections, most of which apply only to tenants specifically affected by the disease or loss of income, and individualised negotiations about rent liabilities, which may result in temporary rent reductions, or mere deferrals – or no settlement at all. In some jurisdictions, provision has been made for arbitration of unsettled matters and binding rent reduction orders (e.g. Queensland and Victoria), while in others unsettled matters can result in termination proceedings, albeit with longer timeframes (e.g. New South Wales). In a situation that may have actually called for wide-ranging rent and eviction controls, it appears that this form of regulation is a lost art in Australia.
In the present uncertain moment, a longer historical view of residential tenancies law reform can help inform the way forward. One lesson of the past 45 years of reform in the consumer protection paradigm is that while common themes have been added to states’ and territories’ reform agenda, they are probably no more consistent in the details of their legislation than they have ever been – the residential tenancy database provisions excepted. The recent uneven landing of jurisdictions on the ‘national housing priority area’ of improved security may be the most significant instance of inconsistency, and a clue to the future of reform. Victoria’s reform agenda was fashioned as part of a wider response to the state’s Royal Commission into Family Violence, from which it took a strong sense that a home should be safe and secure. Maybe after 45 years the consumer protection paradigm has run its course, and it is time for differently articulated principles – perhaps of human rights and housing justice – to reinvigorate residential tenancies law reform.