What is discrimination in housing and accommodation?
Discrimination occurs when someone is treated unfairly because of a protected attribute, for example, their age, sex, race, impairment, religion, pregnancy, parental status, or sexuality.
The Anti-Discrimination Act prohibits discrimination in the provision of accommodation and housing. This includes in relation to property sales and purchase prices, and in relation to tenancies, eligibility criteria, references, maintenance arrangements, sub-letting, conditions, eviction, rent, and bonds.
Persons who are involved in providing accommodation must not discriminate, this includes:
- tenants and landlords
- real estate and property agents
- operators of hotels, motels and backpacker hostels
- providers of mobile homes (for example, caravans, houseboats, and caravan and tent sites)
- university accommodation providers (for example, halls of residence)
- emergency accommodation and housing services (for example, domestic violence refuges or homeless shelters)
- owners or operators of boarding houses and hostels
- building and construction
- sites
- company housing (for example, mining communities).
The Anti-Discrimination Act also prohibits sexual harassment, vilification and victimisation, and other objectionable conduct including in accommodation
Rights and responsibilities for accommodation users
Everyone has the right to access accommodation services and housing free from discrimination, sexual harassment, and vilification.
Accommodation users have a responsibility not to sexually harass or vilify others.
Responsibilities for accommodation providers
Accommodation providers including landlords and real estate agents must ensure their services are provided without discrimination, sexual harassment, or vilification.
Providers have the right to select tenants or buyers as long as the decision is based on reasonable factors like the tenant’s ability to pay rent and is not based on discrimination.
Real estate agents and property agents must not act on discriminatory instructions from property owners. For example, if a landlord directs real estate agents not to rent a property to people of a particular race, and the real estate agents carry out this instruction, both the landlord and the real estate agents could be liable for discrimination on the basis of race.
All workers have the right to work in an environment free from unlawful discrimination, sexual harassment and vilification.
Liability for discrimination in accommodation services
Accommodation providers can be held legally responsible for discrimination, sexual harassment, and vilification committed by their agents or employees.
This means that if you are being discriminated against, sexually harassed or vilified while working in or accessing accommodation services, you may be able to lodge a complaint against the individual worker or agent subjecting you to this behaviour, as well as their employer.
For example, a real estate agent may be liable for the discriminatory actions of a staff member, and a property owner may be liable for the discriminatory actions of their real estate agent.
When discrimination may be lawful (Exemptions)
There are some circumstances when discrimination in accommodation may be allowed. These are called ‘exemptions’.
Exemptions apply only in limited situations and only when they are reasonable.
Welfare measures
A person may do something for the exclusive benefit of members of a group of people with a protected attribute if the purpose is not inconsistent with the Act. For example, a facility can provide accommodation exclusively for people with a disability (impairment).
Shared accommodation
A person may discriminate on the basis of any protected attribute when deciding who will reside in their own home, as long as they are renting to no more than 3 people.
Charities
A body established for charitable purposes may discriminate on the basis of sex, relationship status, or age when providing accommodation if the discrimination is in accordance with the purpose for which the accommodation was established.
Educational institutions
A school or educational institution that provides education to students of a particular sex or religion, or who have a general or specific disability (impairment), may provide accommodation wholly or mainly for those groups of students.
Religious organisations
A religious body may discriminate on the basis of any protected attribute when providing accommodation if the discrimination is in accordance with the relevant religious doctrine or is necessary to avoid offending religious sensitivities of people of the relevant religion.
Unjustifiable hardship
The Anti-Discrimination Act requires that special services or facilities (also called reasonable accommodations or reasonable adjustments) be provided to people with disability (impairment). Where special services or facilities are not provided, this may be indirect discrimination on the basis of disability.
However, an accommodation provider is not obliged to provide special services or facilities where this would impose an ‘unjustifiable hardship’ on them.
Whether supplying special services or facilities imposes an unjustifiable hardship depends on:
- the type of service or facility being requested
- the cost of providing this
- the number of people who would benefit or be disadvantaged by it
- the disruption that might be caused by providing the service or facility; and
- the type of benefit or detriment to everyone concerned.
However, it is unlawful for accommodation providers to refuse to allow someone with a disability (impairment) to make alterations to accommodation to meet their own needs, if the alteration is at their own expense, doesn’t alter the premises of another occupier, and the person undertakes to restore the accommodation to its previous condition before leaving it.
Worker accommodation
An employer may discriminate on the basis of sex where a worker is required to live in employer-provided accommodation and there is no single sex accommodation available and providing single sex accommodation would impose an unjustifiable hardship on the employer.
Common questions about housing and accommodation discrimination
Here are the answers to some of the most common questions about rental tenancy and anti-discrimination law.
Can tenants be evicted?
Yes. Real estate and property agents and lessors have the right to terminate a tenancy agreement if the tenant breaches that agreement. However, tenants cannot be evicted for discriminatory reasons.
What about accommodation advertisements?
Real estate and property agents and lessors must ensure accommodation advertisements are not discriminatory. The easiest way to do this is to encourage all tenants to apply by describing the property rather than the tenant wanted – for example, "one bedroom flat" instead of ‘suit couple or bachelor’.
Can references be asked for?
Yes. References can be requested provided all prospective tenants are asked for them and the request does not result in unfair indirect discrimination – for example, newly arrived migrants, young people and first-time tenants might have difficulty supplying accommodation references but might be able to provide a personal reference instead.
What personal details can be asked for?
Asking for proof of a tenant's identity and ability to pay the rent and maintain the property is permitted. However, real estate agents, property agents and other providers of accommodation services also have a responsibility to avoid asking for unnecessary information that could be used to discriminate against that person. Generally, it is against the law to ask questions on application forms and in interviews about a person's marital status, sex, age, number of children (if any), plans to have children, race or nationality, sexual preference, health condition or medical history, religious or political beliefs. To avoid complaints of discrimination it is desirable to inform tenants why they have not been successful in their application for accommodation.
How much can be charged for bonds and rent?
Charging higher bonds or rent because someone has a protected attribute (e.g., because someone has children) is unlawful discrimination.
Can special tenancy terms and conditions be imposed?
Yes. The application of special terms and conditions is permitted. In general, unless there are good reasons, the same rules and conditions should be applied to all tenants. For example, carrying out more frequent inspections just because the tenants are young, or are Aboriginal, would be unlawful discrimination.
What about tenants with impairments?
A person who has a disability (impairment) has the right to enter into a tenancy agreement without being discriminated against because of their impairment.
A tenant who requires special services or facilities (also referred to as reasonable accommodations or reasonable adjustments) because of their disability should be provided with those special services or facilities unless it would cause unjustifiable hardship.
A tenant with an impairment has the right to make reasonable alterations to the property in order to meet their needs. However, this can only be done if the alterations do not affect the structure of the premises or other premises, the tenant agrees to remove any alterations when they move out, and the tenant pays for the installation and removal of the alterations.
Tenants who have a guide, hearing or assistance dog because of an impairment cannot be asked to keep the dog elsewhere or to pay extra if the dog lives at the accommodation. However, the tenant may be liable for any damage caused by the dog.
What you can do
If you believe you’ve experienced discrimination when accessing housing and accommodation, you can lodge a complaint with the Queensland Human Rights Commission.
