The law always wins
When seeking to tenant a strata dwelling, landlords and agents have the right to choose the most suitable applicant for the property. But there can be serious consequences if they are found to have stopped somebody from renting a property, based on certain personal characteristics.
Whether you’re the one making the decision on the individual who will live in the strata complex you are responsible for or whether it is you who is having their tenancy application accessed, it’s important to familiarise yourself with the different types of discrimination and the federal, state and territory laws designed to protect people from discrimination and harassment.
Under the Australian Human Rights Commission Act (1986), the Age Discrimination Act (2004), the Disability Discrimination Act (1992), the Racial Discrimination Act (1975) and the Sex Discrimination Act (1984), it is unlawful to discriminate on the basis of a number of protected attributes including age, disability, race, sex, intersex status, gender identity and sexual orientation.
Generally speaking, Australian law recognises two ways in which discrimination may occur.
The first is direct discrimination. This is where a person is treated unfairly due to their race, sex, marital status etc. An example of this would be where a landlord refused to rent to a particular tenant because of their ethnicity or because they had children.
The second is indirect discrimination. This occurs when a rule, practice or procedure adversely affects a group of people such as having an overly complicated application form which may, for example, deter recently arrived migrants from applying or placing unrealistic restrictions on the number of occupants permitted which could exclude those who are pregnant.
In addition, some states also have anti-discrimination laws aimed at a particular section of the community.
One such example can be seen in New South Wales where a landlord, agent or other person is prohibited from using or disclosing information in a domestic violence termination notice (or the attached evidence) for any other purpose.
This means the information cannot be provided in a reference check by a property manager, for example.
Disclosure can only be made if permitted or compelled by law. A person in possession of these documents must store and dispose of them securely.
Landlords and agents must not list a tenant on a tenancy database if they ended the tenancy in circumstances of domestic violence.
To ensure victims of domestic violence are not subject to cross-examination, the contents of a declaration made by a medical practitioner is not reviewable by the Tribunal.
These measures help to limit the potential negative impact a domestic violence termination could have on survivors trying to secure alternative rental accommodation.
Landlords or letting agents also need to be aware it is unlawful for them to discriminate against other people when:
- Rental accommodation is advertised (i.e. an ad that states people of a particular ethnicity cannot apply)
- When a potential tenant is renting accommodation and has terms or conditions imposed upon them which are discriminatory (i.e. limiting the people a tenant can invite to visit)
- A tenant is denied access to the benefits associated with their accommodation (i.e. where they in an apartment complex with a pool but are not allowed to use the pool because they have a child with a disability)
- A potential tenant is sexually harassed in the course of being offered accommodation.
If you think you have been discriminated against, sexually harassed, victimised or vilified, there are places you can go to lay a complaint. These include:
NSW: The Anti-Discrimination Board of NSW on 1800 670 812
VIC: The Victorian Equal Opportunity & Human Rights Commission on 1300 292 153
QLD: Queensland Human Rights Commission on 1300 130 670
WA: The WA Equal Opportunity Commission on 1800 198 149
SA: The SA Equal Opportunity Commission on 1800 188 163
TAS: Equal Opportunity Tasmania on 1300 305 062
NT: The Northern Territory Anti-Discrimination Commission on 1800 813 846
ACT: The ACT Human Rights and Discrimination Commission on 02 6205 2222
* Legal and other matters referred to on this post are of a general nature only and are based on Smarter Communities’ interpretation of laws existing at the time of writing. They should not be relied upon in place of appropriate professional advice.