Between the market and the state: the regulatory reform of community housing in New South Wales - contractual, proprietary and governance frameworks

Community housing in New South Wales is a small but unique sub-set of a social housing system which has emerged over the last three decades. While comprising a small fraction of total housing in New South Wales, it holds the seeds for a potentially different approach to confronting the escalating crisis in affordable housing. Until 2007, its legal and regulatory framework was based in an administrative strategy which offered little protection for community housing providers or tenants outside of residential tenancy agreements. There was evidence and ongoing concern about significant regulatory failure in community housing in New South Wales which led to a NSW Parliamentary Inquiry in 2002-2003. This thesis investigates the emergence and the legal and regulatory strategies and frameworks which have evolved for long-term community housing in New South Wales. It does this through: a consideration of government administrative policy; regulatory tools such as funding agreements; evidence obtained through the NSW Parliamentary Inquiry into Community Housing; and review of legal, government based and academic literature pertinent to the broad issues investigated. The recent legislative reforms and regulatory framework introduced from 2007 through to 2010 by the Commonwealth and in New South Wales are considered. The investigation is positioned against two major theoretical claims: 1) that in light of the reconfiguration of the welfare state within the Australian polity community housing sits as an important example of a hybrid context for the provision of social goods through a partnership environment where community housing providers are positioned between the market and the state in both locus and accent. 2) As legal and regulatory frameworks emerge, it is explained that those reforms should be informed by the theoretical strategies of responsive law and responsive regulation. The important work of Philip Selznick is argued to be of critical value in this regard. The major conclusions of this thesis are: 1) That the responsive approach both as to the development and emergence of legal structures and in terms of regulation holds significant promise to develop strategies which are more flexible, adaptable and genuinely engage interested stakeholders in the social housing enterprise. 2) The hybrid form and context of community housing providers presents an opportunity but also a challenge in terms of understanding the contribution community housing can make to the broader environment of affordable housing and as part of a more integrated social housing system being championed for New South Wales. 3) What has been learned through this study is that this different approach to law and regulation leads to a different way of contemplating governance through a rights and responsibilities matrix which is anchored in deeper values which should inform these arrangements. This thesis considers: the authentic voice in participation; the cultivation of solidarity; and the development of community. This thesis found that current reforms hold promise in potentially embedding these features but that more needs to be done during this dynamic and evolving period