Rabu, 20 Maret 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.