Indigenous Law Bulletin
By Tammy Solonec.
Racist stereotypes place Aboriginal people at a disadvantage when seeking accommodation in Western Australia’s private rental market. Existing laws provide some avenue of redress for individuals who have experienced racial discrimination in this context but do little to prevent it from happening.
The stories of discrimination against Indigenous people in private housing are all very similar. Over the phone they are perfect for the property, but as soon as the principal or agent finds out that they are Aboriginal, the house is no longer available, or the owners have decided to sell, or it has just been promised to someone else. Often they are told there is nothing available when in fact there is. In extreme cases, the applicants are refused accommodation directly on the grounds of their race.
Although there are no precise statistics available as to the extent of the discrimination, census data, various Government reports and Perth Indigenous housing workers confirm that there is an unequal proportion of racial discrimination occurring against Aboriginal people in the private rental market. This can also be inferred from the Western Australian Equal Opportunity Commission’s (‘WAEOC’) statistics, which demonstrate that discrimination in relation to housing is one of the primary complaints made by Aboriginal people in WA.
Aboriginal tenants are perceived by principals and agents as a risk. Property owners often prefer to leave their dwellings vacant rather than rent them to Aboriginal people. They believe that their property will be damaged; that Aboriginal tenants will be unable to maintain good housing conditions; that the property will be used to house endless relatives; that there will be anti-social behaviour and that Aboriginal tenants will have difficulty paying rent.
The media has contributed to the formation of these prejudices. The prime example is the 1997 campaign against the Martin family who were dubbed by Perth’s media as ‘the neighbours from hell’. The media reports failed to mention several important facts, including that Mrs. Martin had lived in another house just a few streets away without a problem for 17 years, and that the complaints had been orchestrated by one woman who did not even live on the street.
These stereotypes may also find institutional support in the form of entries on tenant ‘blacklisting’ databases such as the Tenants Information Centre of Australia, National Tenancies Database and Landlord’s Advisory Service. As Joanne Walsh from the Tenants Advice Service says:
A lot of these databases – all they list is the listing agent’s name and the tenant’s name so that the agent who’s taking an application will ring and have a nice little yarn with the person that’s listed them and we don’t know what information is exchanged.
Housing workers further suggest that people are often not aware that they are on the list until they apply for a house. Even then they are not told why they have been listed and they are not given the opportunity to correct any wrong information. It also seems that a person cannot have their name removed from such a list unless the listing agent removes it. If this is the case then it possibly raises serious administrative law issues regarding the denial of natural justice.
The impact of this discriminatory stereotyping is that Aboriginal people are discouraged from seeking private rental accommodation and are forced to rely on public or community housing. If they do pursue private housing they are often left with no choice but to accept substandard housing and receive poor provision of maintenance and services. This merely perpetuates the stereotype.
Under International, Commonwealth and State law, discrimination on the grounds of race is prohibited. Prior to 2000, the WAEOC could investigate complaints under either Commonwealth or State anti-discrimination law. However, as the WAEOC is no longer an agent for the Commonwealth Human Rights and Equal Opportunity Commission (‘HREOC’), the complainant is advised of their choice between the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the Equal Opportunity Act 1984 (WA) (‘EOA’), and given contact details for the HREOC if they choose to complain under the RDA.
The main distinctions between the RDA and EOA are practical. First, if a complaint is not successfully conciliated by the HREOC then the complaint is terminated and it is open to the complainant to commence proceedings in the Federal Court, where a A$50.00 filing fee applies. Under the EOA however, unsuccessfully conciliated complaints can be referred directly to the Equal Opportunity Tribunal and no fees apply. Second, under section 93(2) of the EOA, the WAEOC can provide free legal assistance to a complainant. This is unique to the WA legislation. Finally, it is more expensive and impersonal for the complainant to be sending correspondence to the eastern states. For these reasons, in WA most people lodge their complaints under the EOA.
Section 36(1) of the EOA defines direct discrimination. In relation to accommodation, the complainant will need to prove that the principal or agent, in the same (or not materially different) circumstances, would have let the property to or shown the property to a non-Aboriginal person. The less favourable treatment must be on the grounds of race. This can be difficult to prove. For example, in Williams v Portland City & Farm Sales and Baxter, the complainant was unsuccessful because, in gathering information, her friend failed to ask for accommodation in the same price range.
Indirect discrimination is defined in section 36(2) of the EOA. There have been no claims made under this section in WA (or its Commonwealth, State or Territory counterparts in the rest of Australia) for racial discrimination in the private rental market as it is a very technical and complicated provision.
First, the complainant must show that they have been required to comply with a requirement or condition with which a substantially higher proportion of non-Aboriginal people comply or are able to comply. However, because of the lack of cases regarding indirect discrimination, “there is no clear authority which defines or limits the kind of evidence that can be considered.” Second, the complainant must show that the requirement or condition was not reasonable in all the circumstances. This is usually heavily scrutinised and cases often fail on this point. Finally, the complainant must show that they do not or are unable to comply.
This section provides little recourse for the discriminated-against house hunter. One potential argument revolves around the WA Ministry of Housing’s policy not to give rental references to clients. The requirement by principals and agents that people furnish rental references may be indirectly discriminatory in that a greater proportion of non-Aboriginal people are able to comply because a higher proportion of non-Aboriginal people are in the private rental market and are able to obtain rental references.
There are also specific provisions in the EOA prohibiting racial discrimination by principals and agents in relation to accommodation. Under section 47(1), it is unlawful for a person, whether as principal or agent, to discriminate against another on the ground of the other person's race:
(a) by refusing the other person's application for accommodation;
(b) in the terms or conditions on which accommodation is offered to the other person; or
(c) by deferring the other person's application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.
There is also further protection once the person is in accommodation under section 47(2) in regard to access to benefits (such as maintenance), eviction procedures or any other detriment.
In practice, these anti-discrimination laws are largely ineffective in preventing racial discrimination against Aboriginals in the private housing market. This is well demonstrated by the lack of case law. Although the RDA has been in force for almost 25 years and the EOA for 16, there have been only five cases where Commonwealth, State or Territory anti-discrimination laws have been successfully invoked by Aboriginal people who have been discriminated against on the grounds of their race when seeking accommodation in the private rental market.
Public apologies are an important tool in preventing racial discrimination. However, they can only be ordered if the case reaches and is successful in a State or Territory tribunal, commission or court and if the tribunal, commission or court thinks it fit. Of the five successful cases, only three have included public apologies, (in two editions of the local newspaper). Clearly, these three public apologies have done little to prevent such discrimination from recurring.
About 25% of complaints made under the EOA are resolved by conciliation. While this avoids the costly exercise of going to the Tribunal, the problem is that the results are not publicised. Confidentiality clauses are often inserted into agreements so that the complainant is sworn to secrecy about the settlement received. While this may effectively conciliate that particular case, it does nothing to prevent or eliminate the same thing happening to others. This appears to contradict the EOA’s object of promoting ‘recognition and acceptance within the community of the equality of persons of all races’.
Changing racist stereotypes in the community will not be achieved by the law alone. In order to begin to resolve this problem a combination of approaches need to be adopted. Suggestions include: comprehensive research; making apologies a mandatory part of conciliation and other awards; regulating tenant blacklisting databases in a similar fashion to the Credit Referencing Association Database; implementing internal mechanisms into the real estate institute; and increasing cultural awareness and legal education in the real estate profession, media and general public.
Tammy Solonec is an Indigenous law student from the Kimberley of WA who is currently studying at the University of Western Australia.
 The author conducted interviews with Perth-based Indigenous housing workers from: Shelter WA; East Metropolitan Housing Association; Mangurri Aboriginal Corporation; Karnanny Aboriginal Project; Tenants Advice Service; Anawin Refuge for Aboriginal Women; Aboriginal Hostels Ltd and the WA Equal Opportunity Commission. Transcripts of these interviews can be viewed upon request to the author.
 See, eg Lamb v Samuels Real Estate Pty Ltd (1996) EOC 92-790.
 See, eg Lynton v Maugeri & Anor (1995) EOC 92-754.
 In 1996, 69% of WA Aboriginal households lived in rental accommodation, yet only 16.6% rented from private owners, see Commonwealth, Australian Bureau of Statistics, Catalogue No. 2034.5, 26.
 Commonwealth, The Report of the Royal Commission into Aboriginal Deaths in Custody Vol 4 (1991a) 466; Northern Territory Department of Land and Housing, Aboriginal Housing Strategy: A Northern Territory Perspective, (unpublished) 27; Commonwealth, The National Housing Strategy: Housing Choice - Reducing the Barriers, Issues Paper No. 6 (1992), 26; Commonwealth and State Working Group on Indigenous Housing, Rental Market Failure, Focus Consultancy (April 2000) 8.
 Interviews, above n 1, question 12.
 In the 1998/99 financial year, 47.6% of all race complaints made to the Commission related to accommodation, and 43.6% of all complaints were made by Aboriginal applicants, see Western Australia, WAEOC Annual Report (1998/99) 19 & 22.
 Commonwealth and State Working Group on Indigenous Housing, above n 5, 9.
 Ibid 12–13; interviews, above n 1, question 16.
 V Laurie, ‘Hate thy Neighbour’, The Australian Magazine (Perth) 23-24 August 1997, 21; S Mickler, The Journalists’ Code of Ethics and the Perth Media’s Treatment of the Martin Family Eviction, Centre for Culture and Communications, Murdoch University, < www.http://kali.murdoch.edu.au/~cntinuum/index1.html>.
 Mrs Martin was awarded $10,000 compensation when the WA Supreme Court found that she had been directly and indirectly discriminated against, see Martin v State Housing Commission (Unreported, Supreme Court of Western Australia, Wallwork J, 18 March 1998). However, this finding was overturned by the WA Court of Appeal in State Housing Commission v Martin (Unreported, Court of Appeal of Western Australia, Kennedy, White and Steytler JJ, 7 December 1998). The High Court rejected Mrs Martin’s subsequent application for leave to appeal in Martin v State Housing Commission (Unreported, Kirby & Hayne JJ, 6 August 1999).
 Interview with Joanne Walsh from the Tenants Advice Service, above n 1, question 15(e). Note that the following text only discusses comments made by Perth housing workers because the National Tenancies Database and Tenants Information Centre of Australia has not returned calls and REIWA has refused to furnish information.
 It is arguable that natural justice will apply to principals and agents who use such databases because their function is determinative of a person’s likelihood of accessing the private rental market and this is a public activity that large numbers of people participate in, see Forbes v NSW Trotting Club Ltd (1979) 143 CLR 424.
 In WA, 64.1% of all Aboriginal rental households were community or public housing. This figure was lower for all of Australia at 52.2%, see Commonwealth, Australian Bureau of Statistics, Catalogue No. 2034.0, 30.
 State and Commonwealth Indigenous Housing Working Group, above n 5, 13.
 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195, art 5(e)(iii), (entered into force 4 January 1969).
 Racial Discrimination Act 1975 (Cth) (‘the RDA’) ss 9, 9(1A), 12.
 Equal Opportunity Act 1984 (WA) (‘the EOA\’) ss 36, 47.
 As of 1 July 2000, all complaints lodged before a State or Territory Equal Opportunity or Anti-Discrimination Commission will be assumed to be lodged under the State or Territory Act, see Human Rights Amendment Bill 1999 (Cth).
 Note that this is the only way that a HREOC decision can be enforced, see Brandy v Human Rights & Equal Opportunity Commission  HCA 10; (1995) 127 ALR 1.
 See Human Rights Amendment Bill 1999 (Cth).
 In the 1998/99 financial year, 87.6% of all complaints to the WAEOC were lodged under the EOA. This figure is similar to previous years, see above n 7, 23.
 See also RDA s 9.
 (1995) HREOCA 10.
 RDA s 9(1A).
 EOA s 36(2)(a).
 H McGlade and J Purdy, ‘From Theory to Practice: or what is a homeless Yamatji Grandmother anyway? Joan Martin v Homeswest’, (1998) 11 Australian Feminist Law Journal 137, 151.
 EOA s 36(2)(b), RDA s 9(1A)(a).
 See, eg Martin v State Housing Commission (Homeswest) (1997) 4 EOC 83.
 EOA s 36(2)(c), RDA s 9(1A)(b).
 Interview with Joanne Walsh & Robyn Ninyette of Tenants Advice Service, above n 1, question 15.
 In WA, 64.3% of non-Indigenous rental households are private as compared to 24.1% of Indigenous rental households: above n 4.
 RDA s 12.
 At the Court/Tribunal/Commission stage.
 They are: Lamb v Samuels Real Estate Pty Ltd (1996) EOC 92-790; Lynton v Maugeri & Anor (1995) EOC 92-754; Bull & Bull v Kuch & Kuch HREOC 8/2/93; Woomera Aboriginal Corporation v Edwards HREOC 7/4/94 (although not exactly on point) and Coyne v Tritler (1993) EOC 92-538 (again not exactly on point but the only relevant WA case).
 They are Bull & Bull v Kuch & Kuch HREOC 8/2/93; Woomera Aboriginal Corporation v Edwards HREOC 7/4/94 and Coyne v Tritler (1993) EOC 92-538.
 Western Australia, Investigation & Conciliation: Report on the Steering Committee into Processes under the WA EOA, (1994) 34.
 EOA s 3(d).