AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2003 >> [2003] IndigLawB 8

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Walsh, Joanne --- "Suburban Oppression" [2003] IndigLawB 8; (2003) 5(22) Indigenous Law Bulletin 14

Suburban Oppression

by Joanne Walsh

Article 11 of the International Covenant on Economic, Social and Cultural Rights, to which Australia is a signatory, declares the basic human right to housing.[1]This right is said to be promoted and protected through various pieces of domestic legislation. For example, the Housing Assistance Act 1996 (Cth) provides for the administration of funding to meet the needs of those who face barriers to housing. State based tenancy legislation, which controls both private and public housing, establishes standards in relation to the condition of premises, the rights and obligations of parties to a tenancy agreement and dispute resolution mechanisms.[2]Anti-discrimination legislation provides protection against discrimination in the area of housing and related services.[3] Public sector management legislation further protects public housing tenants from arbitrary and unjust decision making.[4]Sadly, in Western Australia (‘WA’) all this legislation has failed to protect the rights of Aboriginal men, women and children to access affordable and appropriate housing.

Discrimination in the private rental market in WA is an acknowledged fact. For example, Solonec’s work,[5] the WA Homelessness Taskforce Report[6] and the Gordon Report[7] have identified prejudice in varying degrees as a barrier to private housing.

This article focuses on the provision of public housing to urban Aboriginal families in WA. Aboriginal people are persistently over-represented in homelessness statistics. This was apparent from the release in 2002 of both the WA Homelessness Taskforce Report[8] and the Gordon Report.[9]

However, both of these reports failed to adequately scrutinise or make recommendations on systemic housing problems as a major contributor to the growing number of homeless and at risk people, focussing instead on individual faults such as the use of alcohol or drugs. The failure of strategies implemented to date is manifest in the latest Shelter WA report, which identified that now more than half of the homeless in WA are Aboriginal, and one in three is under the age of 14.[10]

Many urban Aboriginal families in WA rely solely on Homeswest, the State’s public housing authority, for access to shelter. Eighteen percent of Homeswest tenants identify themselves as Aboriginal. However, this is likely to be an underestimate, as many do not identify themselves due to legitimate concerns that they will be treated differently. A review of housing provision to Aboriginal applicants, conducted by the Equal Opportunity Commission (WA) (‘the EOC’), found problems. These problems included delay and the age of housing, among others.[11] For 17 years the EOC has received consistently high levels of complaints about Homeswest’s treatment of Aboriginal families.[12] Last year more than 37 percent of all complaints to the Commission were lodged by Aboriginal people against Homeswest.[13]

The United Nations Committee on Economic, Social and Cultural Rights interprets the right to housing as including certain key elements, against which the provision of housing in WA can be assessed.[14]

Legal Security of Tenure

In 2001, Homeswest issued 3,398 termination notices, more than 40 percent of which were served on Aboriginal tenants. The Residential Tenancies Act 1987 (WA) (‘the RTA’) stipulates that a tenancy should only be terminated if there is a breach of agreement serious enough to justify termination, and notices have been served correctly.[15] However, there is no funding for Aboriginal specific tenant advocacy services in WA to challenge terminations. The formal notice of termination is difficult for people with limited literacy skills to read, and many Aboriginal tenants vacate without challenging it.

Less than five percent of applications for termination are defended and eviction orders may be secured in minutes, without Homeswest tendering any evidence other than copies of notices served. In some cases, Court applications become unnecessary because Aboriginal tenants are ‘persuaded’ to leave without any of the legal formalities being initiated. For example, a statement on the back of an accommodation manager’s business card, which was left stuck in a tenants door, read ‘Ms Y and Mr Z, Homeswest has terminated your tenancy. Please return keys on Monday 15/3/02 or all locks will be changed’.

Whilst arrears are the most common reason for Homeswest to terminate, there are two other grounds which are more likely to be used against Aboriginal tenants than any other group. The first is the failure to maintain property standards. These may be based on the white middle class standards of the Homeswest officer without consideration of the number, age or health status of occupants, or on a comparison with ‘street’ standards. Maintaining run down, overcrowded housing to a level that satisfies Homeswest can be difficult in older housing estates, which are being gentrified through redevelopment projects. Keeping up with the Jones’ in newer developments, where Aboriginal public housing tenants are more visible due to their relative poverty and family size, can be a difficult task.

The second common ground for termination is ‘antisocial behaviour.’ This may involve loud music or voices, fighting or swearing. Unfortunately, many complaints of antisocial behaviour are based on ignorance and intolerance of neighbours who do not want an Aboriginal family in their street, and who seem to be particularly affronted by visiting relatives and noisy kids. Sometimes the complaint may relate to an event such as a funeral, an episode of family violence, or mental illness. All of which Aboriginal families are more vulnerable to than the general population. On receipt of a complaint, Homeswest visits the complainant and explains the requirements to secure an eviction. Commonly, the family will then be under neighbourhood surveillance. All comings and goings are reported to either Homeswest or the police, including the taking of photographs, tape recordings and diarising of trivial events. If indeed there is a problem at the tenancy, the fact that the tenant themself has called for police assistance may be used in evidence against them.

Availability of Services, Materials, Facilities and Infrastructure

Homeswest does not routinely provide basics such as floor coverings, flyscreens or exhaust fans. Bare timber floors are difficult to keep clean and take hours to dry when mopped. They can also lead to injuries such as splinters or cuts from protruding nails, and contribute to drafty conditions in many of the older houses. The lack of flyscreens has both hygiene and disease implications, and the lack of exhaust fans can lead to rampant mould.

Many Aboriginal children suffer gastroenteritis linked to blocked drains and overflowing septic systems. Families have been charged for septic tanks to be emptied when Homeswest determines the overflow is due to the tenancy having too many occupants or visitors. Others have repairs delayed due to either reluctance by Homeswest to expend their budget or inadequate bureaucratic procedures.

Affordability

The availability of rental housing for low income families in WA is shrinking, and many pay rental costs in excess of the acceptable benchmark, at 30 percent of income.[16] Homeswest policy provides that no tenant should pay more than 25 percent of household income in rent. However, Aboriginal families may find their household income is deemed by Homeswest to be higher than it actually is. This is often linked to a family providing temporary shelter to their homeless extended family members.

Tenants’ social security income is supposed to be inalienable. However, Homeswest requires tenants to authorise direct debit for rental payments and for the deductions to increase at any time without prior consultation. Rental rebates can be cancelled and backdated overnight, throwing families into significant levels of rent arrears. Some Aboriginal families have found that Homeswest has taken all of their income, causing severe hardship. Negotiations with the Homeswest bureaucracy over the matter can take many weeks and jeopardise the tenancy. For example, if the tenant withdraws authority for the direct debit in order to ensure that they can feed their family, they will immediately be in breach of their tenancy agreement.

Habitability

Despite the RTA requiring that rental premises be maintained in a ‘reasonable’ condition,[17] much of the Homeswest stock provided to Aboriginal families is old and run down. Deteriorated walls, dropped stumps, roof leaks, mould, vermin, corroding pipes and electrical problems are common. Due to economic imperatives, routine maintenance such as painting timber window frames or gutters is not carried out.

Tenancies occupied by Aboriginal families are often subject to a higher level of wear and tear than the average residence because of the higher number of occupants and children. However, accommodation managers have a limited budget for repairs, and their performance is assessed on how much money they have authorised to be spent on the repair of housing stock in their control. It is not unusual for Aboriginal families to experience lengthy delays in getting Homeswest to acknowledge their problems and carry out repairs. Homeswest may simply refuse to carry out the repair until, for example, the tenant has finished paying off their water bill. This can be problematic when water costs are excessive due to the condition of the water apparatus.

Homeswest has sought to address the problem of old, run down stock through its long-term redevelopment projects. This has involved the renovation of older properties for sale. However, occupants of properties earmarked for redevelopment face the additional reluctance by Homeswest to spend money on these properties in the interim period, sometimes years. Many tenancy agreements for such properties contain a clause where the tenant agrees that minimal work will be carried out. While other families in redevelopment areas may look forward to a transfer, families with a ‘poor tenancy history’, often Aboriginal families, have to wait much longer or face threats of eviction.

Accessibility

Over the last decade the WA Government has put no money into public housing, but instead has met its funding obligations by selling assets and operating at a profit. Access to public housing has been increasingly restricted. Homeswest’s eligibility policy precludes people who have a ‘poor tenancy history’, which includes the owing of any money, any previous allegations of causing a nuisance, or failing to maintain ‘standards’. The ‘history’ is based on a senior Homeswest officer’s opinion of the applicant from personal knowledge of the family and review of the one-sided record. Only a senior officer has the discretionary power to approve assistance to a person with a ‘poor tenancy history’. There are no guidelines for the use of discretionary powers and reasons for a decision are rarely documented. Recent anti-racism training conducted with Homeswest revealed a disturbing culture, which Moira Rayner, the acting Commissioner of the EOC, warned was likely to ‘play a significant role when discretionary decisions have to be made’.[18]

Despite the RTA prohibiting any charges other than rent or bond as a condition of tenancy,[19] Homeswest requires the payment of any alleged debt in order to be eligible for further housing assistance. Many such debts have never been proven in a Court. People can ‘appeal’ the charges but they must address each individual charge in writing and then attend Homeswest and speak to each charge in front of an appeals committee. Sometimes there are hundreds of charges, for door stoppers to roof tiles. This process is problematic for Aboriginal people who have higher rates of illiteracy than other tenants and who may have difficulty articulating why the charges are unjustified according to policy, especially since copies of policy are available only on the internet. The process is not independent. An independent review of charges is only available if the tenant takes legal action against Homeswest. A choice rarely made by Aboriginal people.

Location

Due to Homeswest’s redevelopment projects and the sale of assets in the well established and serviced areas surrounding cities and towns, Aboriginal families are increasingly being relocated to the outskirts. There are few services and facilities in these areas and the cost of living is increased enormously by the high cost of transport.

Waiting times for more desirable areas are lengthening but are beyond the reach of these isolated families, as eligibility for transfer is severely restricted. For example, proving domestic violence as a ground for transfer requires concrete evidence such as a police report, and even then the victim may wait 12 months to be moved to safety. Many Aboriginal women and children have been evicted for causing a nuisance to their neighbours during incidents of violence. They are also frequently charged for damage caused by the perpetrator. Both nuisance and damage are breaches of the tenancy agreement, and tenants in breach are not eligible for transfer.

Culturally Adequate

Homeswest stock is not generally culturally adequate for large Aboriginal families. They have only very few, approximately 340, premises with more than 4 bedrooms. The vast majority of Homeswest houses have only three bedrooms, often so small that there is no room for furniture other than beds. Similarly the living areas do not adequately cater for large family gatherings. As a result, and due in part to cultural practices, many Aboriginal families spend a lot of time outdoors. However, the backyards of Homeswest houses are usually little more than shadeless sandpits with weeds. The front yards are usually landscaped by Homeswest, but families who sit in the front yard are at high risk of attracting complaints. A poor tenancy history can also be generated as Homeswest routinely conducts ‘drive by’ inspections of Aboriginal properties and breach notices are sent, for example requiring the removal of a tarpaulin erected for shade. Similarly, unfavourable filenotes may be made, such as ‘noted person arriving at premises with carton of beer’.

The lack of access to affordable and appropriate housing for Aboriginal families has widespread social and economic effects. Families are split up in the pursuit of shelter. For example, a mother and younger children may get a bed in a refuge while older children stay here and there and cannot be properly supervised by their parent. Children’s education is interrupted and medical problems cannot be properly managed. Staying with relatives is a limited option, as living in crowded conditions can lead to further health problems, disputes within families and risks to the other family’s tenancy.

The EOC recently announced an investigation into the provision of housing to Aboriginal people. The terms of reference and consultation paper are available on the Commission’s website.[20] Submissions close 31 March 2003.[β]

Joanne Walsh has worked for the Tenants Advice Service WA in various role for almost ten years, currently as policy officer.


[1] International Covenant on Economic, Social and Cultural Rights art 11, GA Res 2200A (XXI), 21 UN GAOR Supp No 16 at 49, UN Doc A/6316 (1966).

[2] For example, the Residential Tenancies Act 1987 (WA).

[3] For example, the Equal Opportunity Act 1984 (WA).

[4] For example, the Public Sector Management Act 1994 (WA).

[5] T Solonec, ‘Discrimination in the private rental market: Overcoming stereotypes and breaking the cycle of housing despair in WA’ [2000] IndigLawB 54; (2000) 5(2) Indigenous Law Bulletin 4

[6] ‘Addressing homelessness in Western Australia’ (WA Government - State Homelessness Taskforce, 2002), <http://www.homeless.dhw.wa.gov.au/shtf_report1.pdf> .

[7] S Gordon, K Hallahan, D Henry, ‘Putting the picture together, inquiry into response by government agencies to complaints of family violence and child abuse in aboriginal communities’ (Department of Premier and Cabinet (WA) – Gordon Inquiry, 2002), <http://www.premier.wa.gov.au/feature_stories/gordoninquiryreport.pdf> .

[8] State Homelessness Taskforce, above n 6.

[9] Gordon Report, above n 7.

[10]‘A profile of households experiencing homelessness in WA: Third in a series of four surveys’ ( Shelter WA, 2002), <www.shelterwa.org.au>.

[11] ‘Investigation into the provision of public housing to aboriginal people in Western Australia’ (Equal Opportunity Commission (WA), 2002), <www.equalopportunity.wa.gov.au>.

[12] Ibid.

[13] Ibid.

[14] General comment 4: The right to adequate housing, 6 UN CESCR, UN Doc E/1992/23 (1991).

[15] Residential Tenancies Act 1987 (WA) s 71.

[16] Penter, ‘Background issues paper identifying strategic issues relevant to the review of the Residential Tenancies Act’ (Matrix Consultancy, 2002), <www.taswa.org/pubs/policy>.

[17] Residential Tenancies Act 1987 (WA) s 42.

[18] Letter to Greg Joyce, Chief Executive Officer EOC, 9 July 2002.

[19] Residential Tenancies Act 1987 (WA) s 27.

[20] Equal Opportunity Website <www.equalopportunity.wa.gov.au>.

[β] For more information on Aboriginal housing in WA see:

(a) ‘Housing for all. A (sub)urban myth’, (Tenants Advice Service, 2000), <www.taswa.org/pubs/policy>.

(b) McGlade and Purdie, ‘From theory to practice: Or what is a homeless Yamatji grandmother anyway? Joan Martin v Homeswest’ (1998) 11 The Australian Feminist Law Journal.

(c) Purdie, ‘A dance macabre – homelessness, godlessness and the (unfractured) skeleton of the common law’ (A paper presented at the 19th Annual Law and Society Conference - Forms of Legal Identity, Victorian Law School, University of Victoria, 2001), <www.taswa.org/links>.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2003/8.html