Discrimination is unlawful under tenancy law when it breaches the Human Rights Act.
There are 13 Prohibited Grounds of Discrimination from Section 21 of the Human Rights Act 1993:
1. Sex, including pregnancy/childbirth
2. Marital Status
3. Religious Belief
4. Ethical Belief
5. Colour
6. Race
7. Ethnic or National Origin
8. Disability
9. Age, although a tenant must be over 18 to sign a tenancy agreement
10. Political Opinion
11. Employment Status
12. Family Status
13. Sexual Orientation
When selecting a great tenant, we are looking for the best possible tenant based on merit and who is going to do two things.
1) Pay the rent on time,
2) Look after the property.
We also assess their application on other factors such as the number of people who reside at the property, the length of the tenancy, etc.
Does the colour of someone’s skin determine whether they will pay the rent and look after a property?
Absolutely not.
The Residential Tenancies Act makes it unlawful for anyone to discriminate:
• when deciding whether to grant a tenancy
• when deciding to continue or change an existing tenancy
• when deciding to end a tenancy.
You also can’t tell someone else to discriminate. For example, a landlord cannot instruct a property manager not to rent to a single parent, young people, people with children, or any of the other prohibited grounds for discrimination. Landlords can however say that they only want to rent to people with a proven rental history and references, and they can specify the maximum number of people allowed to reside at the property.
Can a landlord specify their ideal tenant?
Yes, a landlord can describe their ideal tenant, providing that description does not show an intention to discriminate. The Human Rights Act makes it unlawful to advertise in a way that shows an intention to discriminate against potential tenants on any of the protected grounds.
Landlords and property managers need to focus on their preferred qualities rather than on stereotypes. In an advertisement, they could say their ideal tenant is responsible, reliable and can provide references.
We must avoid using terms like ‘professional couple’, as it could be seen as an intention to discriminate against potential tenants because of their employment status or marital or family status.
Can landlords refuse to rent to or treat a person differently because they have a disability or a disability assist dog?
No, if someone has a disability, this must not factor into your decision making when deciding whether to grant them a tenancy, or you will be in breach of the Human Rights Act. Also, if they have a disability assist dog, a no pet policy either from the landlord or the body corporate is of no effect. Disability assist dogs are always ‘good boys’, and regardless, the tenant would be responsible for any damage the dog does.
Landlords and property managers should not make assumptions about whether a property is suitable for a person with a disability.
People with a disability should be allowed to make their own decision about whether accommodation is suitable for them, rather than a landlord or property manager ruling it out on their behalf.
Can a landlord refuse to rent to someone with children?
No, a property owner or their property manager cannot refuse to rent a property to someone because they have children. However, they can specify the maximum number of people who can live in the home, which will affect some families.
Under the Human Rights Act, it is against the law to treat tenants or potential tenants less fairly than others because of their family status, or any of the protected grounds.
If a landlord has had negative experiences with tenants with children in the past, that doesn’t mean they can rule out future tenants because of their family status.
Landlords and property managers should not make assumptions about whether a property is suitable for someone with children.
Applicants should be allowed to make their own decisions about whether a steep path or a busy road might be an issue for them, rather than a landlord or agent ruling them out.
What can a tenant or prospective tenant do if they think they have been discriminated against?
If a tenant feels that they have been discriminated against, they can take their complaint to the Human Rights Commission or the Tenancy Tribunal, but they cannot do both.
The second highest penalty on Schedule 1A of the Residential Tenancies Act 1986 is discrimination, with up to $6,500 in exemplary damages, payable to the other party.
There is a $350,000 limit on the money the Human Rights Tribunal may award. This is the same as the District Court
Summary – Section 12 of the Residential Tenancies Act 1986 – Discrimination to be an Unlawful Act
• Don’t discriminate and don’t tell anyone else to either
• Don’t state an intention that you are going to discriminate.
If a landlord was to instruct a property manager to discriminate on their behalf, they would commit an Unlawful Act under the Residential Tenancies Act 1986 and the Human Rights Act 1993, and if a property manager was to act on those instructions, they also commit an Unlawful Act.
The 13 prohibited grounds for discrimination have no bearing on whether a tenant will pay the rent on time and look after a property, and therefore should not, and must not, be considered when selecting a tenant.
