Why haven’t things changed?!?

Over the past few decades, change has been slow, piecemeal, ineffective, and has usually favoured the interests of landlords. In no jurisdiction has there been systemic review of the model first put forward in the Poverty Report. In the result, legislation is geared towards protecting the financial interests of landlords as investors in property. The case for increased protection of tenant interests has been cogently presented. Proposals of non-government organisations have been largely ignored by the authorities. In my opinion, there are three reasons as to why change has been so sluggish.

Property Rights

Increased protection of tenants directly confronts Australia’s western liberal tradition which favours the rights of property owners. The states and territories have emphasised pathways to home ownership rather than improved protection of tenant rights and interests. It was John Locke who said government was necessary to protect the rights of property owners. In his words, the ‘great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property’.

This school of thought still resonates in modern time despite powerful and well-known critique.  Such reliance is often not explicitly articulated but can be identified upon analysis. Such as when a court determines reasonableness in favour of property owners without providing detailed reasoning as to their decision. Implicit is the belief that rights attached to ownership have precedence over all other interests. A more prescriptive approach to drafting legislation may be needed to combat the social norm that priorities property ownership over other societal interests.

Public/Private Distinction

The second reason is the traditional distinction drawn between the public and private spheres of human activity.  Western liberal theory posits that the state should only seek to regulate the public sphere. The distinction has been widely discredited. Feminists have demonstrated that the divide operates to the disadvantage of women. The divide continues to have a strong hold in the context of residential tenancy law. People spend their time in the public or private sphere. In the public sphere, for example, the law of employment and labour relations in Australia is well-developed. By contrast, the home itself, along with landlord and tenant relations, has been heavily neglected.

The integrity of residential tenancy laws has a special significance for women. Feminists have identified the link between women’s rights and housing. In contemporary times, women are still more likely to stay at home carrying out household chores and caring for children. Residential tenancy laws have internalised a specialised form of systemic gender-based discrimination. Such approaches perpetrate a systemic form of violence against women and should not continue. Further development is necessary to give meaningful content to principles of equality and non-discrimination.

Power Imbalance

The third reason is the power imbalance between tenants and their advocates on one hand, and landlords and their agents on the other. Tenants may be retaliated against if they seek to enforce existing rights, while advocates risk losing funding if they criticise government policy. The study of power has been integral in the field of employment and labour relations. The employer and employee relationship is similar to the tenant and landlord relationship.

Employers and landlords aspire to money, while employees aspire to fair wages and working conditions, and tenants aspire to fair rent and housing conditions. The pursuit of these things impact on the objective of profit. These interests are in direct opposition. The state has, on the whole, successfully addressed the power imbalance between employers and employees.  But it has not done so in the private sphere with respect to residential tenancy law. Tenants can only be protected if this fundamental power imbalance is addressed both in law and practice.

Concluding Remarks

If the law of residential tenancy is to advance, we must first understand what has held tenants back. Any effort at law reform must address the state’s blindness to the private sphere, the power imbalance between tenants and landlords, and the cultural emphasis on property ownership. Theory first; law reform later.