Tenancy Law

The rights and obligations of landlords and tenants have been the subject of many common law cases going back centuries. However, since around the middle of last century, those common law principles have largely been superseded by legislation. As the Commonwealth does not have the power to make legislation about tenancy law, and the Australian Consumer Law does not cover tenancy matters, each state and territory has developed its own legal regime.

While each act is broadly similar, down to the name of the legislation – the Tasmanian act is called the Residential Tenancy Act, while in NSW, Victoria, the ACT, the Northern Territory and South Australia it is called the Residential Tenancies Act – there are important differences between. They all seek to balance the rights and responsibilities of tenants and landlords fairly, but each arrives at a different result. For example, Tasmania is the only state or territory that dictates minimum standards for rental properties. Conversely, the Tasmanian Act does not specify the form and contents of a standard lease agreement, unlike all other jurisdictions. A landlord in Tasmania cannot evict a tenant on a non-fixed lease without reason, while on the mainland they can, although time periods differ form state to state.[1] Other important differences include:

• Dispute resolution processes;
• The form of notices;
• Time periods; and
• The rights of social housing tenants.

As such, a student cannot apply their specific knowledge of the Tasmanian legislative regime to other states.

[1] The NSW and Victorian governments are currently in the process of reviewing their tenancy legislation, so the assertions in this paragraph are subject to change

 

State and Territory Law

 

Tasmania: http://www.austlii.edu.au/au/legis/tas/consol_act/rta1997201/

New South Wales: http://www.austlii.edu.au/au/legis/nsw/consol_act/rta2010207/

Victoria: http://www.austlii.edu.au/au/legis/vic/consol_act/rta1997207/

Queensland: http://www.austlii.edu.au/au/legis/qld/consol_act/rtaraa2008420/

South Australia: http://www.austlii.edu.au/au/legis/sa/consol_act/rta1995207/

Western Australia: http://www.austlii.edu.au/au/legis/wa/consol_act/rta1987207/

Australian Capital Territory: http://www.austlii.edu.au/au/legis/act/consol_act/rta1997207/

Northern Territory: http://www.austlii.edu.au/au/legis/nt/consol_act/rta207/

 

International Law

Australia has ratified both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. These instruments (at articles 25 and 11(1) respectively) provide that adequate housing is a human right. According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), housing is not adequate when:

 

• Security of tenure: housing is not adequate if its occupants do
• not have a degree of tenure security which guarantees legal
• protection against forced evictions, harassment and other
• threats.
• Availability of services, materials, facilities and infrastructure:
• housing is not adequate if its occupants do not have safe drinking
• water, adequate sanitation, energy for cooking, heating, lighting,
• food storage or refuse disposal.
• Affordability: housing is not adequate if its cost threatens or
• compromises the occupants’ enjoyment of other human rights.
• Habitability: housing is not adequate if it does not guarantee
• physical safety or provide adequate space, as well as protection
• against the cold, damp, heat, rain, wind, other threats to health
• and structural hazards.
• Accessibility: housing is not adequate if the specific needs of
• disadvantaged and marginalized groups are not taken into
• account.
• Location: housing is not adequate if it is cut off from employment
• opportunities, health-care services, schools, childcare centres
• and other social facilities, or if located in polluted or dangerous
• areas.
• Cultural adequacy: housing is not adequate if it does not respect
• and take into account the expression of cultural identity.

 

OHCHR Fact Sheet 21: Adequate Housing: http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf

Universal Declaration of Human Rights: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

International Covenant on Economic, Social and Cultural Rights: http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf

 Questions

1. Is Australia required to provide or build housing for every citizen under international law?
2. Using the OHCHR criteria as a guide, does the Residential Tenancy Act 1997 comply with Australia’s international obligations?

The presentation available at the link below is designed to assist teachers plan and sequence lesson content relating to Tasmanian tenancy law.

Tenancy_Law_Lesson_Sequence_Presentation