Private rights and public responsibilities: The regulation of community housing providers

Abstract

In all Australian States and Territories many of the traditional functions of public housing have been devolved to community housing organisations. While these community housing providers are generally subject to tenancy legislation in respect of their tenancy arrangements, their public funding basis means they may also be subject to regulation of their internal governance, including decision-making processes that apply in respect of the provision of housing, to ensure that applicants for and recipients of housing from community housing providers have similar protections as would be expected to apply in the provision of public housing. These include fair and transparent decision-making and appeal processes from their decisions. This confluence of public and private regulation raises difficult issues about both the capacity and nature of public regulation in its application of public administrative law principles to the provision of housing by a private, albeit community-based and publicly-funded, landlord. The central issue is the appropriateness and capacity of administrative law principles, including the principles of procedural fairness, to apply to private bodies. This is complicated further by the confusion of the requirements of private regulation (tenancy law) and those of public regulation. This article draws on the authors' experience as members of a South Australian review body, which hears appeals concerning the decisions of community housing bodies.