Thursday, March 21, 2013

Reform anti-discrimination law (part 2)

The Federal Government's Human Rights and Anti-Discrimination Bill, discussed here just a couple of days ago, has been shelved, at least for now.

 The Federal Government says it will present legislation to address discrimination on the grounds of sexuality, gender identity and intersex status, which is one of the gaps in the present federal anti-discrimination regime. But the rest of the reforms – which would have consolidated the regime and made it consistent, addressed discrimination on further grounds such as political opinion and family responsibilities, and provide for the sharing of the onus of proof in discrimination complaints – will go back to the bureaucracy for more work, and we do not know when or if they will see the light of day.

The Tenants' Union and 95 other community organisations have written to the Attorney General, Mark Dreyfus, to express our disappointment at the Federal Government's decision and to urge it to bring the Bill forward at the first opportunity. If you feel the same, we ask you to let the Attorney General know too.


After we posted on this issue a couple of days ago, a TAAS advocate got in touch with us to discuss a case of hers.

Her client, the tenant, lived with his wife in house rented through a real estate agent. The fixed term of the tenancy expired, the agreement rolled over to become a periodic tenancy, the agent came around for a routine inspection, the agent met the tenant's wife – all the usual things, except in this case the tenant's wife has a disability and gets about in a wheelchair.  A no-grounds termination notice was issued by the agent a couple of days later.

Under the Residential Tenancies Act 2010, a no-grounds termination notice will end your tenancy, regardless of the circumstances of the case or the landlord's reason for wanting you gone. (The single exception to this: if the termination notice is given in retaliation for your asserting your rights as a tenant. In this case, the tenant had asserted nothing, so no retaliation.) So there was nothing to do for this tenant and his wife under our tenancy laws.

Could discrimination law help? The TAAS advocate sought advice, but it wasn't encouraging: on the evidence available to the tenant, it would be difficult to prove that the reason for the termination notice was discriminatory.

The reforms in the draft Bill may have helped here, particularly the shared burden of proof: this would mean that if the tenant's evidence was enough to make out a prima facie case of discrimination, the onus would shift to the landlord or agent to prove the contrary – in other words, explain their reason, with evidence.

As things stand, the no-grounds termination provisions of the Residential Tenancies Act give cover to discriminators, and our anti-discrimination laws don't do enough to flush them out. Both should be reformed.


  1. Was it discrimination, you don't say. I know in the UK things have got totally out of hand with claims of discrimination when there has been none and of course where there has been discrimination it can be hidden. This being more so when the law is enforced against abusers. Are we really going to go down that road? Already sour relationships between tenants and landlords bound to increase if the law is ill used. The no grounds termination should be changed to ensure tenants have some recourse.

  2. Hi Ameli

    'Was it discrimination?' The tenant is inclined to think so: he cannot think of anything else that has happened to trigger a termination notice (particularly so soon after rolling over into a periodic tenancy).

    But he's got no hard proof of discrimination - and that's the point. The proof, if any, is in the hands of the agent and landlord. And neither our residential tenancies laws or our anti-discrimination laws really gets the proof out.

    The sorts of reforms we're talking about would just mean that landlords could be asked to explain themselves (in either termination proceedings, or discrimination proceedings). They might have a readily provable explanation ('we're knocking the place down and rebuilding'; 'my sister needs the place to live in'; etc). Or they might not.

    Having to give a reason and be prepared to back it up is not a big ask.


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