Modernising Consumer Protection in Renting: From Individualised to Systemic Protections

This piece was originally published in the Parity edition 'Reforming Residential Tenancies Acts', June 2023. Parity is Australia's national homelessness publication. It has been lightly edited for this version.

Over the last 50 years, tenancy acts have been directed by the results of the national inquiry conducted by Ron Sackville as part of the Whitlam poverty inquiries. The recommendations of that inquiry built on previous attempts to carve out protections from the common law and balance the individual interests of a renter and a landlord. What will drive reform in the coming years and decades? I believe it needs to be a shift to protection and regulatory design at the systemic level.

In Sackville’s Report, “Law and Poverty in Australia”, the section on renting made 37 recommendations covering Tribunals to Bond Boards to minimum standards and rules for eviction. These recommendations shaped the modern tenancy system that has been implemented across the country – although only the ACT has implemented the final, key recommendations of ending 'no grounds' evictions, and only since April this year.

These recommendations sought to set standards in the contract between renter and landlord, and provide sites for resolving disputes. What they did not do is reach between tenancies.

When you buy an avocado in Australia, you can be pretty confident it won’t harm you (or your chances of purchasing property!). Consumers generally have two levels of protection. Firstly they have their own individual consumer rights to return a dodgy avo. Secondly, there are regulations in place to ensure avos are grown and stored in a manner that minimises the risks of toxins. Food safety standards, including licencing and registration, covers every food vendor from your local greengrocer to the multi-hatted restaurants of the Good Food Guide to the food truck at your local markets. These two levels of protection mean you don’t have to try and find out if they have been cleaning out the back – the food standard authority does that for you.

Like food, everyone needs a home, although there are many conceptions of what a home should look, smell or feel like. However, the current individualised approach to safeguarding renters falls well short, leaving widespread systemic issues and degrading faith in the system as a whole.

The limitations of individual protections in renting are evident in the growing frustration people have with the experience of renting. While Australian renters have, on paper, many of the rights that modern community standards expect, they do not have the practical experience of those rights.

One of the most obvious examples, and easily TikTok-able, are the repairs and maintenance standards. As a tenant advocate, one of the most common calls I received was from people who were moving out of a place that had been poorly maintained and wanting to know what they could do to prevent someone else having to deal with it. However, those calls were still outweighed by calls from people moving into a poorly maintained home – because the answer is the law stops covering the property while no one is renting it. 

Renting regulation today relies heavily on the renter to do the heavy lifting, even where consumer affairs or the Tribunal is able to assist. It is the renter who has to stick their neck out to raise issues, potentially jeopardising their current tenancy while we maintain 'no grounds' evictions, as well as their future tenancies if their willingness to enforce their rights and respect the contract is noted in references.

This means that, for many, a good renting experience is a mix of luck and privilege. Lucky if you find an owner and agent who are willing and able to honour not only the tenancy agreement but also the responsibility of providing space for you to make your home. Privileged to have the income, the references, and other options if enforcing your rights goes wrong. It’s hard to believe it a coincidence that eviction rates are far lower in the north and east of Sydney than in the south and west.

At the end of the day, a landlord is an investor seeking a return on their investment. A renter is trying to keep safe and create a home for themselves and their family. These interests are not balanced, because there is significantly more at stake for one than the other. We need to ensure the purpose of the rental sector is recognised to be about providing good, safe, stable and affordable homes, with any investment a means to that end – not the end itself. There are other forms of investment available to people without the capacity or willingness to engage with this purpose, and they should be encouraged to explore those options.

To rectify the shortcomings of individualised protections, we must adopt a systemic approach. Systemic consumer protections offer numerous advantages, including broader coverage, robust enforcement mechanisms, and a more balanced power dynamic between landlords and renters. By shifting our focus to systemic measures, we can truly safeguard the rights and interests of all renters.

To build a framework of systemic consumer protections, we need to shift the locus of enforcement away from the individual renters alone.

 

• Standardised lease agreements and applications ensure transparency and prevent unfair terms.

• Mandatory property inspections and maintenance standards guarantee habitable living conditions.

• Registration and licencing schemes open up communication between regulator and industry and swift and fair resolution of disputes complement robust complaint resolution mechanisms.

• Rent price stabilisation measures protect renters from skyrocketing rental prices.

• Funding support services, such as the Tenants Advice and Advocacy Services, to be able to actually meet the needs of the community. For instance attending all eviction hearings empowers renters with knowledge and resources to navigate the individualised aspects confidently.

 

Implementing systemic consumer protections is not without its challenges. Opposition from landlords and industry groups is expected, as it may disrupt existing business models. Concerns, both valid and fanciful, about potential impacts on rental sector dynamics will be raised requiring the government to engage in careful analysis and planning. Overcoming political and legislative barriers demands concerted efforts and unwavering commitment to protect the rights of renters.

To pave the way for systemic consumer protections, collaboration among stakeholders is essential. Policy-makers, landlords, and renters must come together to shape policies that effectively leverage the immediate effectiveness of regulation alongside better planning for growing population and changing needs. Legislative reforms and policy initiatives need to be introduced and championed by forward-thinking lawmakers. Importantly, we must learn from successful examples and adapt them to the unique contexts of different regions.

Expanding consumer protection to include a systemic approach is not a luxury; it is a necessity in today's rental market. By transitioning from individualised to include systemic protections, we can ensure that all renters are afforded fair treatment, adequate living conditions, and the ability to assert their rights.