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Solonec, Tammy --- "Housing for Indigenous Western Australians: Part One" [2008] IndigLawB 15; (2008) 7(4) Indigenous Law Bulletin 23

Housing for Indigenous Western Australians: Part One

by Tammy Solonec

Mainstream Housing
Despite the barriers, greater numbers of Indigenous people rely upon mainstream housing than upon Indigenous housing. Due to the housing affordability crisis, rising interest rates and the rising cost of living, many are finding themselves at breaking point.

Introduction

In the words of the United Nations Special Rapporteur on Adequate Housing, Indigenous housing in Australia is in crisis[1] and arguably in breach of international law.[2] The rate of home ownership is low, especially when compared with non‑Indigenous households and even with households of indigenous people of other developed nations.[3] There is also a heavy reliance on public and community housing,[4] which is often of a low standard with poor maintenance. This position is worsening because of the housing affordability crisis and rising Indigenous population (especially in remote regions).[5]

This paper is the first instalment of a two-part report which seeks to draw attention to Indigenous-specific housing issues in Western Australia (‘WA’). Part One will focus on mainstream housing including purchasing homes, private rentals and public rentals. Part Two, to be published in the May edition of the Indigenous Law Bulletin, will focus on the specific laws and concerns with regard to Indigenous community housing in WA.

Home Ownership

Owning one’s home outright is the ‘great Australian dream’, and is also the safest and most secure form of tenure. Unfortunately, most Indigenous Australians do not have this security. In WA in 2006, only 7.7 per cent of Indigenous households (ie, households with at least one Indigenous person)[6] were fully owned, compared to 32 per cent among the rest of the population.[7]

Purchasing a Home

The second level of tenure in terms of security is purchasing a home. In WA in 2006, the number of Indigenous households purchasing their home (23 per cent) was more comparable to non-Indigenous households (32 per cent).[8] It should be noted that the 2006 WA Census showed a rise in Indigenous home purchasers of four per cent since the previous calculation.[9] This can be attributed in part to programs such as Keystart[10] and IBA home loans.[11]

Security of tenure in this sector is less secure than home ownership because of the need for purchasers to maintain mortgage payments and to keep up with rising interest rates; a task made more difficult for Indigenous people by intergenerational poverty.[12] This could be addressed with more programs in financial literacy as well as more flexible arrangements in loans, such as those found in the hardship provisions of the Consumer (Western Australia) Credit Code.[13] The usage of these programs and provisions needs to become more common so that people can maintain their mortgages.

Renting in the Private Rental Market

The third most secure form of tenure is renting in the private rental market; that is, from real estate agents or private landlords. Significantly however, figures on private renting do not include the rental of rooms only. In 2006, 20 per cent of all Indigenous renting households were private rentals. In contrast, 42 per cent of non-Indigenous rentals were private.[14]

In WA, private tenancy is governed by the Residential Tenancies Act 1987 (WA) (‘the RTA’), which is administered by the WA Department of Consumer and Employment Protection (‘DOCEP’). If either a landlord or tenant experience difficulties they have protections under the RTA (except in discrimination or vilification matters) and can contact DOCEP or an advocacy body such as the Tenant’s Advice Service (‘TASWA’) or Aboriginal Legal Service (‘ALSWA’) for advice. At DOCEP, a conciliation officer may be appointed to the case and if the matter is still not resolved, the claimant can go to the Magistrate’s Court.

Security of tenure in the private rental market is dependent on the tenancy agreement. Often people will sign a six- or 12-month lease and when this initial period ends, a periodic tenancy commences or the tenant leaves (unless another lease is negotiated). Importantly, periodic tenancy gives tenants less security; the landlord only needing to give 60 days' notice before the tenant must move.[15]

The main problem for Indigenous people in the private rental sector is lack of access to it. Due to poverty[16] and rising rental costs,[17] especially in major regional centres like Broome, Karratha and Kalgoorlie, many Indigenous people are priced out of the private rental market, even with Commonwealth rent assistance.

On top of financial barriers, Indigenous people face discrimination by property owners, real estate agents and neighbours.[18] They are seen as a risk and many owners would rather leave their premises empty than rent to Indigenous people.[19] Although it is illegal to discriminate in the area of accommodation based on a person’s race,[20] the laws are onerous and the standard of proof required is difficult.[21] For these reasons, there is little usage of these laws.

The negative perceptions of Indigenous people as tenants have been inflamed by media such as the infamous campaign against an Indigenous family from Karrinyup, dubbed ‘the neighbours from hell’ by Perth media.[22] To overcome these stereotypes, there is a need for anti-discrimination and cultural awareness training for landlords, real estate agents, and the media.

There is also a need for Indigenous people in WA to be educated about tenancy[23] and for more programs such as the Private Rental Access Scheme, which assists Indigenous tenants in finding rental accommodation, educates them in tenancy matters and head leases the property until the tenancy can be sustained by the Indigenous tenant.[24] It would also be useful for Commonwealth rent assistance to keep up with the housing costs in WA.

Renting Public Housing

Public rental accommodation in WA refers to dwellings which are leased from the Department of Housing and Works (‘DHW’). In 2006, this was the most common form of housing tenure for Indigenous households in WA at 26 per cent.[25] In contrast, only 3.5 per cent of non-Indigenous households were public rentals.[26]

DHW and its tenants are, like private tenancies, bound by the RTA and the Residential Tenancies Regulations 1989 (WA). The only exemptions are the duty to lodge security bonds with DOCEP or in a trust account, the duty to give receipts and the ability to vary rent.[27]

The calculation of rent and eligibility for DHW housing is complicated. Eligibility is dependent on remoteness, the number of people in the house, whether those people have disabilities and the combined incomes of the tenant and their partner (but not other household members).[28] Calculation of rent is dependent on all the above factors, but also includes the incomes of all people in the house, including other household members.[29]

The provisions which allow DHW to vary the rent charged result in reduced security of tenure for public tenants; though the security is arguably higher than in the competitive private rental market. The 2002 Stamfords Report[30] recommended that this exemption be altered, however implementation of this recommendation is yet to occur.

The major concern in relation to public housing is the lack of houses. In WA, Indigenous people face waiting periods of up to five years to access public housing and up to two years for priority housing through DHW. Of those who are able to rent publicly, many are not happy with the service they receive, experiencing problems with the amount, distribution, style, design, and maintenance of those houses, and the administration of the department.[31] This dissatisfaction culminated in a 2004 report of the WA Equal Opportunity Commission, Finding a Place – an inquiry into the existence of discriminatory practices in relation to the provision of public housing and related services to Aboriginal people in Western Australia,[32] which made a number of recommendations to the department.[33] The implementation of these recommendations, overseen by the Commission, has seen major policy change within the department in recent years. Implementation will continue through to 30 June 2010.

Conclusion

In WA, the majority of Indigenous people rely on mainstream housing for accommodation. There is still however a disproportionately high number of Indigenous people relying on public and community housing. Indigenous people face specific barriers in accessing mainstream housing including intergenerational poverty and racism. These barriers, coupled with rising housing costs in WA, are contributing to poor housing, overcrowding and many associated social welfare problems for Indigenous people in WA. This paper has highlighted the laws governing mainstream housing in WA, the issues specific to Indigenous people and suggested reforms. The next instalment of this paper will consider laws and issues associated with specialised Indigenous Community Housing, affecting mainly remote Indigenous communities in WA.

Tammy Solonec, a descendant of the Nyikina people from Derby, Western Australia, is an Articled Clerk in the Civil and Human Rights Units of the Aboriginal Legal Service of WA. Tammy is currently a member of the Aboriginal Housing and Infrastructure Council of WA.

Part Two of this paper will be published in the May edition of the Indigenous Law Bulletin (7(5)).


[1] Office of the United Nations High Commissioner for Human Rights, ‘UN expert on adequate housing concludes his visit to Australia, identifies hidden national housing crisis’ (Press Release, 23 August 2006).

[2] Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (1948), art 25; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3, art 11 (entered into force 3 January 1976).

[3] In Australia in 2006, only 28 per cent of Indigenous households were owned compared to Canada (41 per cent), New Zealand (50 per cent) and the United States (59 per cent): Australian and New Zealand Banking Group Ltd, ‘Home Ownership and Indigenous Australians’ (Discussion paper, 2007) 8.

[4] According to the 2006 Census, 59 per cent of Indigenous households in WA were classified as ‘public’ or ‘community’ housing compared to 15 per cent of non-Indigenous households: Australian Bureau of Statistics, ‘Tenure type and landlord type by dwelling, structure by Indigenous status of household’, 2006 Census of Population and Housing, Western Australia (State) (2006).

[5] Michael Dillon, ‘Remote Indigenous Housing in 2020: Vision or Oversight?’ (2006) Public Administration Today, 11; Australian Bureau of Statistics, ‘Births, Australia’ (2003) Ch 3; Australian Bureau of Statistics, ‘Occasional Paper: Population Issues, Indigenous Australians’ (1996).

[6] Australian Bureau of Statistics, ‘Census Dictionary, 2006 (Reissue)’, 2006 Census of Population and Housing, Western Australia (State) (2006).

[7] Australian Bureau of Statistics, above n 4.

[8] Ibid.

[9] Ibid.

[10] Keystart is an initiative of the Department of Housing and Works (‘DHW’) designed to assist people in WA into affordable housing. It does not require the usual five per cent deposit. See <http://www.keystart.com.au> .

[11] Indigenous Business Australian (‘IBA’) home loans are targeted toward Indigenous people who have the capacity to repay a long term loan but have difficulty in obtaining alternative finance. See <http://www.iba.gov.au/ibahomes/> .

[12] In 2001, 41 per cent of Indigenous households were living below the poverty line: Australian Bureau of Statistics, ‘2002 Summary Booklet’, 2002 National Aboriginal and Torres Strait Islander Social Survey (NATSISS), (2002); and see Australian Institute of Health and Welfare, ‘Indigenous housing needs 2005, a multi-measure model’, (2005) 2 which stated that in 2001, 37 per cent of all Indigenous households were spending more than 25 per cent of their combined household income on rent.

[13] See Part 4, Division 3 of the Consumer Credit (Western Australia) Code (WA): ‘Changes on grounds of hardship and unjust transactions’.

[14] Australian Bureau of Statistics, above n 4.

[15] Residential Tenancies Act 1987 (WA) (‘RTA’) s 64A. Note that under s 63 of the RTA, this period will decrease to 30 days if the owner enters into a contract of sale. If the tenant is being forced to leave for some other reason such as the non-payment of rent, s 62 provides that the period of notice may be as little as seven days.

[16] Australian Bureau of Statistics, above n 12.

[17] Braden Quartermaine, ‘Hard sell: Market set for another boom year’, Sunday Times (Perth) 19 February 2006, 43; Braden Quartermaine, ‘Over-the-top deals done in rent race’, Sunday Times (Perth) 19 February 2006, 43.

[18] Tammy Solonec, ‘Racial Discrimination in the Private Rental Market: Overcoming Stereotypes and Breaking

the Cycle of Housing Despair’[2000] IndigLawB 54; , (2000) 5(2) Indigenous Law Bulletin 4, 5. See also, Government of Western Australia, ‘Indigenous Consumers Count: A Consultative Approach Towards Improving Consumer Protection for Indigenous Western Australians’, (2007) 15.

[19] Consultancy to the Commonwealth and State Working Group on Indigenous Housing, Rental Market Failure, (2000) 9.

[20] Racial Discrimination Act 1976 (Cth) s 12; Equal Opportunity Act 1984 (WA) s 21.

[21] Solonec, above n 18.

[22] V Laurie, ‘Hate thy Neighbour’, The Australian Magazine (Melbourne) 23 August 1997, 21; Joan Martin v State Housing Commission (Homeswest) [1997] 20/1997 (Unreported, Equal Opportunity Tribunal WA, Hasluck, 25 July 1997).

[23] See, for eg, Department of Consumer and Employment Protection (WA), ‘Renting a Place in WA: Guides for Indigenous Consumers’ (2007), <http://www.docep.wa.gov.au/consumerprotection/content/indigenous_consumers/#4> at 11 April 2008.

[24] This scheme, run by Foundation Housing Ltd, is designed to help Indigenous people in accessing the private rental market and support them to maintain their tenancies, see <http://www.foundationhousing.org.au/> .

[25] Australian Bureau of Statistics, above n 4.

[26] Australian Bureau of Statistics, above n 4 and see also DHW, ‘Housing Strategy WA: Issues Paper: Tenure: Public Rental Housing: June 2003’ (2003) 42: ‘It is estimated that at least 15% of total public rental tenants in WA (excluding Aboriginal community tenancies in rural and remote locations) are indigenous Australians.’

[27] Residential Tenancies Act 1987 (WA) ss27-32; Residential Tenancies Regulations 1989 (WA) Regs 5A and 5B.

[28] DHW, ‘Eligibility relating to the income of applicants’, <http://www.dhw.wa.gov.au/homes/manuals/rental/rental_policy_ELIGIBIL-2.html> at 11 April 2008.

[29] DHW, ‘Rent to income policy’,

<http://www.dhw.wa.gov.au/homes/manuals/rental/rental_policy_RENT.html> at 11 April 2008.

[30] Stamfords Advisors Consultants, Statutory Review of the Residential Tenancies Act 1987 (WA): Final

Report, (2002), recommendation 12.

[31] Equal Opportunity Commission WA, Finding a Place: An inquiry into the existence of discriminatory

practices in relation to the provision of Public Housing and related services to Aboriginal people in Western Australia, (2004), <http://www.eocwa.wa.gov.au/pdf/findingaplace.pdf> at 11 April 2008.

[32] Ibid.

[33] DHW and Equal Opportunity Commission WA, Aboriginal Housing Joint Statement, (2006), <http://www.equalopportunity.wa.gov.au/pdf/s80_jointstatement.pdf> at 11 April 2008.


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