The provision of rental accommodation is a very important area in terms of eliminating discrimination, as it goes to the very core of people’s needs — for a roof over their heads, and for freedom from harassment under that roof.

It is understandable that landlords and real estate agents want to select ‘good’ tenants for their properties. However in making decisions about who will be the best tenant they run the risk of discriminating against some of the candidates, and according to enquiries and complaints received by the Anti-Discrimination Board, this is not uncommon.

Under NSW Anti-Discrimination law, it is unlawful to discriminate on the basis of sex, race, age, marital status, disability, homosexuality, transgender status and carers’ responsibilities in the provision of rental accommodation.

Yet the Board hears stories of landlords and real estate agents who don’t want to let a house or unit to an unmarried couple, to people with young children, to a single parent, to a group of young people, to a person with a physical or intellectual disability, or to people of a particular race.

One group that experiences particular discrimination issues relating to housing is Aboriginal and Torres Strait Islander people. Estate agents and landlords may make decisions based on stereotyped assumptions about Aboriginal and Torres Strait Islander people’s ability to pay rent, look after a property and so on.

It is unlawful to deny a person accommodation because they are Aboriginal, to defer an Aboriginal person’s application or place them lower down on a list of applicants, to offer accommodation on different terms, to offer a different quality service (eg a different level of maintenance of the property), to provide the service in a different personal manner, to harass a person because they are Aboriginal or to evict them because they are Aboriginal.

Research conducted by the Anti-Discrimination Board and the then Department of Fair Trading in 1999 revealed that the main problem for Aboriginal people is in accessing rented accommodation in the first place. If they are given access to accommodation, they may only be offered places in certain parts of the town or city.

A common situation is reflected in a case heard by the NSW Equal Opportunity Tribunal, in which an Aboriginal woman was told on the phone by a real estate agent that there were flats available in her price range, but when she went to the office she was told there were none. When her Caucasian friend went to the office the same day, she was told there were flats available. The Tribunal found that she had been discriminated against and awarded her $6,000 in damages.

If agents deliberately deceive Aboriginal customers, this may also be unlawful under fair trading laws, which state that an agent must not engage in conduct that is ‘misleading’ in connection with the supply of services to a customer.

In another case in Inverell in Northern NSW, an Aboriginal woman had already been living in a house with the lessee for six months, but she was refused the lease when the original lessee moved out. The Administrative Decisions Tribunal found that she had been discriminated against and awarded her $10,000 in damages, noting that the denial of housing is a violation of a fundamental human right.

Another common form of discrimination is where it appears that more stringent conditions are applied to Aboriginal tenants than to non- Aboriginal tenants, such as charging a higher bond, as well as problems with matters such as water bills and bond money.

If agents rank applicants for a property according to their income, this may result in indirect discrimination against Aboriginal people (who on average earn less than non-Aboriginal people), as well as women, single parents, young people and so on. Indirect discrimination is where a requirement that is the same for everyone has an unequal effect on particular groups.

A fairer system might be to rank people according to when they lodge their application and then consider in turn each person’s capacity to pay the rent and maintain the property.

If discrimination does occur, both the managing agent and the landlord can be liable. It is not a defence for an agent to say that they were following the owner’s instructions.

The Anti-Discrimination Board’s Aboriginal and Torres Strait Islander Outreach team has been working with the Office of Fair Trading to provide training for landlords and real estate agents in discrimination issues, as part of their continuing professional development.

In this training the Board makes a number of recommendations about how landlords and real estate agents can avoid discriminatory practices. The essential principle is that people should be assessed on their merits and not on the basis of assumptions about their race.

To do this, agencies should begin by ensuring that their business culture is one which promotes tolerance and fairness. All staff in an agency should be made aware of the company’s service procedures and code of behaviour. The Board also suggests that agents develop a letting policy which states that the company will not discriminate, and display this publicly.

It is also a good idea for agents to tell tenants why they were unsuccessful with a tenancy application. If they are left guessing they may be more likely to suspect discrimination.

Agents should also be aware that Aboriginal people’s experience might be different, and they may not be able to fulfil all the criteria that are commonly used in determining who can rent a property. However this does not necessarily mean they will make bad tenants.

For example, Aboriginal people may not have references from previous landlords, as they may be more likely to have lived with a family member or in government housing. An alternative could be for real estate agents and landlords to recognise references from key Aboriginal people such as elders, Land Council members or officials of other Aboriginal organisations.