anti discrimination - fair trading act (NSW)


The NSW Anti-Discrimination Board and the NSW Office of Fair Trading are working with real estate agents for a ‘Fair Go’ for tenants when renting or  trying to rent a property. This article outlines an agent’s rights and responsibilities, and how to avoid problems with discrimination.

ANTI-DISCRIMINATION LAWS

Anti-Discrimination Act 1977 No 48


Part 2 Racial discrimination

Division 1 General

6   (Repealed)

7   What constitutes discrimination on the ground of race

(1)  A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a)  treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b)  segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c)  requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2)  For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

20   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:
(a)  by refusing the person’s application for accommodation,
(b)  in the terms on which the person offers the person accommodation, or
(c)  by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.



34   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex:
(a)  by refusing the person’s application for accommodation,
(b)  in the terms on which he or she offers the person accommodation, or
(c)  by deferring the person’s application for accommodation or according to the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.

38N   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:
(a)  by refusing the person’s application for accommodation, or
(b)  in the terms on which he or she offers the person accommodation, or
(c)  by deferring the person’s application for accommodation or giving the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, in those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.

   

48   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital status:
(a)  by refusing the person’s application for accommodation,
(b)  in the terms on which he or she offers the person accommodation, or
(c)  by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital status:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.



49N   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:
(a)  by refusing the person’s application for accommodation, or
(b)  in the terms on which the person is offered accommodation, or
(c)  by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person, or
(c)  by subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.
(4)  Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent.
(5)  Nothing in this section applies to the provision of accommodation to persons who have a particular disability by a charitable body or other body that does not distribute its profits to members.
(6)  Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the person who provides the accommodation.







49ZQ   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of homosexuality:
(a)  by refusing the person’s application for accommodation,
(b)  in the terms on which he or she offers the person accommodation, or
(c)  by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of homosexuality:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.



49ZYO   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of age:
(a)  by refusing the person’s application for accommodation, or
(b)  in the terms on which the principal or agent offers the other person accommodation, or
(c)  by deferring the other person’s application for accommodation or according the other person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against a person for whom accommodation has been provided on the ground of age:
(a)  in the terms or conditions on which accommodation is provided, or
(b)  by denying or limiting access to any benefit associated with accommodation, or
(c)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, in those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons, and
(c)  the accommodation is provided with a concession provided in good faith to a person by reason of the person’s age.


The law states that you must not discriminate against  someone (treat them unfairly compared to others), or harass them, because of their:

In the case of a real estate agent, it is against the law to use characteristics such as race, disability, sex, etc to decide whether you will rent a property to a prospective tenant. It is no defence to claim that a discriminatory action was the result of following the instructions of the property owner. Property owners should be aware that they may be liable for discriminatory acts, for example where the owner instructs an agent to only rent to white people and the agent carries out those instructions. In that case both the owner and the agent may be liable. It is no defence for an agent to say she or he was simply carrying out the instructions of the owner.

DIRECT AND INDIRECT DISCRIMINATION

Direct discrimination is when a person is treated less favourably than another person because of their race, sex etc.

Indirect discrimination is where there is a requirement (a rule, policy, practice or procedure) that is the same for everyone, but which has an unequal or disproportionate effect on particular groups (for example, women, people of certain races, young people). Unless this requirement is 'reasonable having regard to the circumstances of the case’ (Anti-Discrimination Act) it is likely to be indirect discrimination.

The following is an example of indirect discrimination:

A real estate agent has a number of applications from people wanting to rent the same property. The agent’s policy is to rank applications by the income of applicants. Since some people from Aboriginal backgrounds may earn less on average than others, this policy may result in indirect discrimination.

A fair selection process would be to rank people in order of when they lodge their application and then assess the first application for their capacity to pay the rent and maintain the property.

FAIR TRADING LAWS

Fair trading laws state that you must not engage in conduct that is, in the circumstances, unconscionable in connection with the supply of goods and services to a customer.


The following is an example that may be both discrimination and misleading conduct.

An Aboriginal person rings the real estate agent about a rental property. On the phone the real estate agent tells the caller that the property is available. When the Aboriginal person goes to the real estate agent to lodge an application, the real estate agent informs them that it is no longer available. Then a non-Aboriginal person asks the same agent and is told that the property is available.

In an actual case like this, the Administrative Decisions Tribunal ruled that the real estate agent was liable under anti-discrimination law and awarded $6,000 damages against the agent. 

Let’s show that you are a ‘Fair Go’ business

In providing services to your clients, your agency must not use the race, sex, age, marital status, pregnancy, disability, transgender or homosexuality of the person (or their relatives, friends or associates) to decide:

  • whether the service is provided – eg. not accepting applications for rental property from people with characteristics covered by discrimination law 

  • to defer a person’s application for accommodation or putting them lower on a list of applicants

  • the terms on which accommodation will be offered, for example charging a higher rent or bond or imposing some other condition

  • the type of service provided – eg. letting a tenant’s race affect the level of maintenance provided for their rental property

  • the manner in which the service is provided – eg. people must not be harassed or ignored because of their race, sex, etc to evict a person or subject them to any other detriment.

 

Counter and phone service often gives a potential client their first impression of your office. It makes good business sense for your agency to make sure that this service is non-discriminatory. This helps you to maintain and expand your business.

You should also make sure that everybody who works in your business is aware of the law and does not themselves discriminate in their dealings with tenants or prospective tenants.

If they do, you may be legally liable for their unlawful actions unless you can show you took all reasonable steps to prevent them doing so.

Promote your good practices

It’s a good idea to develop a letting policy for your office. The letting policy should explain that your agency will not discriminate. Display it publicly to show your clients and prospective clients that you will provide a fair and equal service to all clients. The Real Estate Institute of NSW Letting Policy (produced in association with the Anti-Discrimination Board) is one example you may wish to copy.

It’s good practice to tell tenants why they were unsuccessful with a tenancy application. If you don’t give a legitimate reason, people may assume discrimination occurred. Giving reasons may help people to better understand your decision.            

More information

NSW Anti-Discrimination Board
Tel: 9268 5555 or 1800 670 812 
www.lawlink.nsw.gov.au/adb


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