LENNON and STATE HOUSING COMMISSION
[2006] WASAT 344
•24 NOVEMBER 2006
LENNON and STATE HOUSING COMMISSION [2006] WASAT 344
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 344 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:23/2006 | 18 & 19 OCTOBER 2006 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 24/11/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRUCE LENNON STATE HOUSING COMMISSION |
Catchwords: | Equal opportunity Accommodation Whether discrimination of grounds of race |
Legislation: | Anti-Discrimination Act 1977 (NSW) Equal Opportunity Act 1984 (WA), s 4(1), s 5, s 36, s 36(1), s 36(1a), s 36(2), s 47(1), s 47(2), s 161 Residential Tenancies Act 1987 (WA), Form 1A, Form 12 |
Case References: | Collard v Department of Housing and Works [2004] WAEOT 13 Frost and Western Australian Police Service [2005] WASAT 150 Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3 (19 April 1995) State Housing Commission v Martin (Unreported, Full Court Supreme Court of Western Australia, 19 October 1988, Lib No 980699) State of New South Wales v Amery [2006] HCA 14 Summerville and Department of Education & Ors [2006] WASAT 174 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 Nil |
Orders | The complaint of Bruce Lennon against the State Housing Commission, initially made to the Commissioner for Equal Opportunity under the Equal Opportunity Act 1984 (WA) on 6 August 2004 and referred to the State Administrative Tribunal by the Commissioner for Equal Opportunity under cover of letter dated 7 March 2006, and the proceedings in the State Administrative Tribunal, are dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LENNON and STATE HOUSING COMMISSION [2006] WASAT 344 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 18 & 19 OCTOBER 2006 DELIVERED : 24 NOVEMBER 2006 FILE NO/S : EOA 23 of 2006 BETWEEN : BRUCE LENNON
- Applicant
AND
STATE HOUSING COMMISSION
Respondent
Catchwords:
Equal opportunity - Accommodation - Whether discrimination of grounds of race
Legislation:
Anti-Discrimination Act 1977 (NSW)
Equal Opportunity Act 1984 (WA), s 4(1), s 5, s 36, s 36(1), s 36(1a), s 36(2), s 47(1), s 47(2), s 161
Residential Tenancies Act 1987 (WA), Form 1A, Form 12
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms T Cole
Solicitors:
Applicant : Self-represented
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Collard v Department of Housing and Works [2004] WAEOT 13
Frost and Western Australian Police Service [2005] WASAT 150
Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3 (19 April 1995)
State Housing Commission v Martin (Unreported, Full Court Supreme Court of Western Australia, 19 October 1988, Lib No 980699)
State of New South Wales v Amery [2006] HCA 14
Summerville and Department of Education & Ors [2006] WASAT 174
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The Tribunal decided that the State Housing Commission did not relevantly discriminate against Mr Lennon or act unlawfully under the Equal Opportunity Act 1984 (WA) when it:
• failed to allocate public housing to him in Kalgoorlie and instead allocated accommodation to him in Boulder in late 2004;
• terminated the Tenancy Agreement between Mr Lennon and the Commission for non-payment of rent in early 2005 and then took possession of the Boulder premises.
Issues
2 The main issues raised for consideration by the complaints that the applicant (Mr Lennon) made to the Commissioner of Equal Opportunity under the Equal Opportunity Act 1984 (WA) (EO Act) are:
• whether the respondent (State Housing Commission (Commission)) relevantly discriminated against Mr Lennon or acted unlawfully under the EO Act when it failed to allocate him accommodation in Kalgoorlie and instead later allocated him accommodation in Boulder;
• whether the Commission discriminated against Mr Lennon or otherwise acted unlawfully under the EO Act when it terminated the Tenancy Agreement between the Commission and Mr Lennon in respect of premises at Boulder.
Facts
3 On 2 October 2001, Mr Lennon, who is Aboriginal, lodged with the State Housing Commission (Commission) at its Kwinana office an application for rental housing in the Cockburn zone.
4 On 23 October 2001, the Commission approved Mr Lennon's application on a "wait turn" basis for 1 bedroom singles housing in the Cockburn zone.
(Page 4)
5 On 8 October 2002, the Commission provided details of an offer to Mr Lennon of a property in Medina.
6 On 15 October 2002, the Commission wrote to Mr Lennon to request reasons for Mr Lennon's failure to respond to the offer from the Commission. Because no response was provided by Mr Lennon, on 29 October 2002 the Commission withdrew Mr Lennon's application.
7 On 20 November 2002, Mr Lennon sent the Commission an email to request that the Commission reinstate his application and by email on 21 November 2002 advised the Commission of his new address in Coolgardie.
8 On 26 November 2002, the Commission reinstated Mr Lennon's application.
9 On 31 December 2002, in response to a review of Mr Lennon's application, Mr Lennon requested housing in the Fremantle zone.
10 On 10 January 2003, the Commission approved Mr Lennon's application on a "wait turn" basis for 1 bedroom single housing in the Fremantle zone.
11 On 15 October 2003, the Commission wrote to Mr Lennon to request Mr Lennon participate in a review of his application.
12 On 29 October 2003, the Commission's letter of request was returned to the Commission with a notation on the envelope indicating that Mr Lennon had left his Coolgardie address.
13 On 19 April 2004, Mr Lennon wrote to the Commission from Port Augusta, South Australia to request that the Commission reinstate his application.
14 On 7 May 2004, the Commission referred Mr Lennon's request for reinstatement to the Commission's first-tier decision review process.
15 On 11 May 2004, the Commission's first-tier decision-maker declined the applicant's request to reinstate his application because the applicant was living outside of Western Australia.
16 On 9 June 2004, the Commission received Mr Lennon's application to appeal the Commission's decision of 11 May 2004 as well as notice of Mr Lennon's new postal address - PMB 117, Wanarn WA 6440. (Wanarn
(Page 5)
- is a remote Aboriginal Community between Warburton and the South Australian border).
17 On 2 July 2004, the Commission's Regional Appeals Committee reinstated Mr Lennon's application to the Kalgoorlie zone.
18 On 6 July 2004, the Commission sent details of an offer to Mr Lennon of a property in Kalgoorlie to him at the Wanarn address. The letter required a response to the offer with 3 days "of the date of this letter". No one in the Commission took the obvious course of telephoning Mr Lennon to communicate the offer, as they really should have.
19 When the Commission did not receive a response, on 12 July 2004, the Commission wrote to Mr Lennon to request reasons for his failure to respond to the Commission's offer. Again this was sent to the Wanarn address.
20 On 2 August 2004, the Commission reinstated Mr Lennon's application when Ms Diane Blade, the Assistant Regional Manager, in Kalgoorlie realised that it had fallen into error by sending the letters dated 2 July and 6 July 2004 to the Wanarn address but with the wrong postcode entered.
21 On 4 August 2004, the Commission received an email from Mr Lennon with an attached letter dated 30 July 2004 requesting that the Commission reinstate his application. It seems the original offer letter sent to Wanarn was eventually received by Mr Lennon and he then immediately acted upon it.
22 On 4 August 2004, the Commission faxed Mr Lennon a letter to advise him that his application had in fact been reinstated on 2 August 2004.
23 On 10 August 2004, Mr Lennon sent the Commission an email with an attached letter advising the Commission that if the offer was still available to him, he would accept it, otherwise he would lodge a formal complaint with the Equal Opportunity Commission and the Western Australian Ombudsman's Office.
24 On 12 August 2004, the Commission received a letter from the applicant dated 30 July 2004 requesting an appeal against the Commission's alleged withdrawal of his application.
25 To try to clear up the confusing situation, Ms Blade, on 13 August 2004, telephoned Mr Lennon to advise him that his application
(Page 6)
- had been reinstated and to offer to reserve him a unit at 133 Burt Street, Boulder (then under construction) on condition that he provide details to the Commission of his ongoing eligibility for public housing. A condition of his accepting the unit would be that Mr Lennon live in the unit as his permanent place of residence. Verification of his income would also be required.
26 On 18 August 2004, the Commission wrote to Mr Lennon to confirm that his application had been reinstated.
27 On 19 August 2004, the Ombudsman provided the Commission with a copy of a letter that the Ombudsman had sent to Mr Lennon on the same date.
28 On 23 August 2004, Mr Lennon faxed an "employer income verification statement" to the Commission.
29 On 31 August 2004, Ms Blade telephoned Mr Lennon to offer him a unit at 3/133 Boulder Street, Boulder (the Boulder unit), which he accepted.
30 On 1 September 2004, the Commission faxed Mr Lennon a letter to confirm its offer of the Boulder unit.
31 On 6 October 2004, Mr Lennon entered into a Tenancy Agreement (Tenancy Agreement) with the Commission for the Boulder unit. He met with Ms Regnis-Brown at the Commission's Kalgoorlie office for this purpose. The contents of the Tenancy Agreement detailed both Mr Lennon's and the Commission's obligations under the agreement. Mr Lennon also entered into a room heater hire agreement, a statement of understanding, a summary of main conditions of tenancy, a property condition report and an application for rental subsidy. On 6 October 2004, Ms Regnis-Brown also discussed with Mr Lennon difficulties in deducting rent from his Centrelink payments due to that payment being in a different name.
32 On 3 November 2004, Mr Lennon's cheque to the Commission dated 6 October 2004 for $209.67 was dishonoured. The Commission wrote to Mr Lennon to advise him that his rent was therefore in arrears by $340.10 and to remind him to pay his rent. However, this was sent to an incorrect address in Boulder.
33 On 8 November Ms Regnis-Brown left a note for Mr Lennon at the Boulder unit.
(Page 7)
34 On 9 November 2004, when there still had been no response, the Commission issued the applicant a Form 21 Breach Notice for Non-Payment of Rent advising Mr Lennon that he owed $314.80 rent arrears and requesting he pay the outstanding sum immediately and delivered the notice to the Boulder unit.
35 On 16 November, Ms Regnis-Brown again visited the Boulder unit but could not locate the applicant.
36 What happened at about this time is that Mr Lennon had returned to Wanarn to complete his work before returning to Kalgoorlie to pursue his career. However, while in Wanarn he was contacted by his sister from Port Augusta to advise that his father was seriously ill and not expected to live. Mr Lennon then left Wanarn by car and drove to Port Augusta to be with his family. Unfortunately his father now passed away. Cultural obligation then kept Mr Lennon in Port Augusta with his family.
37 Thus, at certain material times in November, when the breach notice was issued by the Commission, Mr Lennon was not in Kalgoorlie and not at Wanarn and had not updated the Commission about his movements and his new point of contact. Fortunately, because Mr Lennon operated a mobile phone, he was eventually contacted by an officer of the Commission in Port Augusta in early December.
38 In the meantime though, on 22 November 2004, Ms Regnis-Brown tried to telephone Mr Lennon without success. She then tried to send him an SMS telephone message but again received no answer. She then instructed Mr Mason, the Recovery Officer, to institute legal action.
39 Thus, on 25 November 2004, the Commission wrote to Mr Lennon to advise him that it was serving a Residential Tenancies Act 1987 (WA) Form 1A Notice of Termination due to non-payment of rent. Form 1A was attached to the letter.
40 As just explained, in early December contact was made by the Commission with Mr Lennon. On 1 December 2004, Ms Blade telephoned Mr Lennon in Port Augusta and advised him that his rent was in arrears and that the Commission had made numerous attempts to contact him. He explained that his father had died and that he was not aware that he was in arrears. He said he would call back and would arrange for a money order.
41 On 2 December 2004, Ms Blade telephoned Mr Lennon in Port August again when to make arrangements for him to pay his rent
(Page 8)
- arrears. He undertook to send a postal order for $281.65 within the same week, and then to pay $134.40 per fortnight to include his $99.40 fortnightly rent, a $25 instalment for rent arrears owed and a $10 instalment for bond owed. Ms Blade advised the applicant that Centrelink will not deduct rent from payments made to him because he was registered with Centrelink by another name, rather than Bruce Lennon. He said he would call her back after he contacted Centrelink to change his details, but he did not call back.
42 On 2 December 2002, the Commission received a copy of a letter the Aboriginal Housing and Infrastructure Directorate had sent to Mr Lennon on 30 November 2004. That letter was sent because, according to the usual practice of the Commission, when dealing with breach of a tenancy agreement that involves an Aboriginal person, that Directorate is notified so that it can provide appropriate advice and assistance to Aboriginal tenants. That plainly is a sensible and important process.
43 On 9 December, when she had heard nothing further Ms Blade instructed Mr Mason, the Recovery Officer, to issue a Form 12 notice.
44 On 10 December 2004, the Commissioner filed and served upon Mr Lennon a Residential Tenancies Act 1987 Form 12, filed in the then Local Court, Small Disputes Division at Kalgoorlie, in which it requested the following orders:
• Termination of the Tenancy Agreement.
• Possession of premises.
• Payment of arrears of rent.
• Bond money to be applied to debt.
• Costs of application.
45 On 14 December 2004, Mr Lennon telephoned Ms Regnis-Brown from Port Augusta to ask if he could pay his rent arrears by credit card, she explained that he could not and therefore, he would need to send a postal order as agreed on 2 December 2004.
46 On 20 December 2004, Mr Mason, the Recovery Officer, telephoned Mr Lennon in Port Augusta to advise him that the Form 12 application was listed to be heard in the Local Court in Kalgoorlie on 6 January 2005. He further advised Mr Lennon that he would need to pay at least half of the rent outstanding and honour the agreement made on
(Page 9)
- 2 December 2004. Mr Lennon undertook to send a money order for $220 that week. Mr Lennon also indicated then that he was going to refer the Commission's conduct in respect of the application to terminate the Tenancy Agreement to the Equal Opportunity Commission.
47 At 29 December 2004, the Commission had not received any moneys from Mr Lennon and indeed he had not sent them any.
48 As at 4 January 2005, the Commission still had not received any moneys.
49 On 6 January 2005, the Commission therefore pressed for the orders requested in the Form 12 and orders were made in terms of the application.
50 At this point, while those orders were made in the Local Court, the Commission did not immediately press for the execution of the orders. It well understood that it would need to take action on the orders within three months if it wished to recover factual possession of the Boulder unit pursuant to the orders made on 6 January 2005.
51 On 6 January 2005, an employee of a South Australian office of Centrelink, together with Mr Lennon, telephoned Ms Regnis-Brown and advised that the applicant was trying to organise for his rent payments to be deducted from his Newstart Allowance. The Commission officer explained that Mr Lennon was known to the Commission as Bruce Lennon and not the other person, as he was known at Centrelink. Ms Regnis-Brown explained that Mr Lennon was subject to court action for non-payment of rent. Mr Lennon stated that he would not discuss the matter with a Commission officer, rather Mr Lennon stated that the Commission would be hearing from his lawyer and that he would be returning to Kalgoorlie on 24 January 2005.
52 On 12 January 2005, Ms Regnis-Brown telephoned Mr Lennon in Port Augusta to advise him of the court order made on 6 January 2005. Mr Lennon told the officer the matter was in the hands of a lawyer and therefore he refused to discuss the issue with her.
53 On 14 January 2005, Ms Rene Ellis, a solicitor from the Aboriginal Legal Rights Movement Inc. in South Australia telephoned Ms Regnis-Brown to advise that she was acting for Mr Lennon, explained that he was trying to organise for $135 to be deducted from his Newstart Allowance every fortnight to meet his rent and arrears. She further advised that he had left South Australia to work in the Northern Territory
(Page 10)
- after which he was to return to Kalgoorlie to work. Ms Regnis-Brown explained Mr Lennon's rental situation to the solicitor and what attempts had been made to deal with the matter to date.
54 On 19 January 2005 the Commission received a letter from Ms Ellis, dated 13 January 2005, to confirm that she was acting for Mr Lennon and in her letter she explained that he had instructed that he was not aware he was in arrears and that his rental payments were being deducted through Centrepay. Ms Ellis advised that Mr Lennon would be returning to Boulder in the then forthcoming two weeks and wanted to continue to reside at the Boulder unit.
55 On 21 January 2005 Mr Lennon telephoned Ms Regnis-Brown from Port Augusta and offered to pay the Commission $300 as a single sum and then $200 per fortnight in addition to his rent of $99.40 per fortnight thereafter. The Commission refused Mr Lennon's offer and advised him that he must pay $960.90 to the respondent by 5pm Monday 24 January 2005 or the Commission would obtain a warrant for possession to evict from the Boulder unit.
56 On 24 January 2005 Mr Lennon faxed the Commission a short letter and a copy of an Australian Money Order in the sum of $400 from Port Augusta. In his letter he indicated he was sending the money order immediately and he would settle the remaining $540 by posting a money order on Friday 28 January 2005.
57 On 24 January 2005 the Commission wrote to Ms Ellis to outline the history of the applicant's non-compliance with his obligations under the Tenancy Agreement and the communications which had occurred between him and the Commission throughout the tenancy. Mr Mencshelyi, the Regional Manager, signed the letter.
58 On 24 January 2005 Mr Lennon telephoned Ms Regnis-Brown from Port Augusta to confirm that he had posted an Australian Money Order to the respondent in the sum of $400. Mr Mencshelyi agreed to this.
59 On 28 January 2005, Mr Lennon faxed the Commission an Australia Post Facsimile Transmittal Sheet with a copy of a receipt for an Australian Money Order in the sum of $540 from Port Augusta.
60 On 14 February 2005 the Commission issued a further rental arrears notice for $70.60. On 21 February 2005a further notice for $120.30 was issued.
(Page 11)
61 On 2 March 2005, when the arrears stood at $170, Ms Blade telephoned Mr Lennon and left a message on his mobile phone requesting him to call urgently in relation to rent arrears.
62 On 2 March 2005, Mr Lennon telephoned the Commission from Port Augusta to explain that he had sent a $100 money order on 25 February 2005and that he would send another $100 money order in the week commencing 7 March 2005, and then $150 per fortnight thereafter. He advised he would be returning to Kalgoorlie on 11 March 2005.
63 On 4 March 2005 Ms Blade telephoned Mr Lennon in Port Augusta to confirm the Commission had received the payment of $100. He was reminded that he had undertaken to send another $100 in the week commencing 7 March 2005.
64 On 14 March 2005 Ms Blade telephoned Mr Lennon in Port Augusta to advise that no further rent had been received and he was, therefore, in arrears again. Mr Lennon stated he would send a $150 money order the same week and a $150 money order in the week commencing 28 March. She explained that it was his responsibility to pay his rent fortnightly without being personally reminded.
65 As of 21 March 2005, the Commission had not received any monies from the applicant since 4 March 2005. On 23 March 2005, Ms Blade again telephoned Mr Lennon in Port Augusta to remind him that his rent was still in arrears. Mr Lennon advised that he had sent a $100 money order on 18 March 2005 and that he would send another $100 money order on 24 March 2005. She explained to him that the eviction order was still current and that he was obliged to pay his rent without being personally reminded by the Commission. The applicant advised that he would be returning to Kalgoorlie at Easter and therefore booked an appointment to see Ms Blade on 29 March 2005.
66 On 31 March 2005 an officer of the Commission telephoned Mr Lennon and left a message asking him to call urgently because the Commission was proceeding to recover the property for continual arrears and non-occupancy.
67 By memorandum dated 31 March 2005, Ms Blade sought the approval of Kerry Fijac, Executive Director of the Department of Housing and Works, to proceed with a warrant of execution against Mr Lennon. In the memorandum, Ms Blade brought to the attention of the Executive Director the current debt situation and also noted that Mr Lennon had only resided at the unit for two nights since initial occupation. Approval was
(Page 12)
- then given, in accordance with the recommendation made, to proceed with a warrant of execution due to "ongoing and persistent arrears". It was understood when that memorandum was sent and approval given, that the court order to support the warrant of possession would expire on 6 April 2005.
68 On 4 April 2005, an officer of the Commission telephoned the applicant in Port Augusta to advise him that the Commission was going to apply for a warrant of possession on the same date.
69 On 6 April 2005 the Bailiff took possession of the Boulder unit pursuant to a Warrant of Execution. The Commission officer attended the premises with the Bailiff and located the applicant's personal possessions which were stored in three large bags.
70 On 11 April 2005 the Department of Justice sent the Commission an email with an attached letter from the applicant to the Clerk of Courts at Kalgoorlie, dated 6 April detailing his position in relation to payment of rent in arrears.
71 On 12 April 2005 a Commission officer telephoned Mr Lennon in Port Augusta to advise him that the Commission had taken possession of the Boulder unit due to his long absence and non-payment of rent. He protested about the Commission's actions and alleged that the Commission had discriminated against him, an issue he would take to the Federal Court.
72 On 26 April 2005 the then Minister responsible for the Commission, the Hon Fran Logan MLA, wrote to Mr Lennon to address issues raised by Mr Lennon in his letter to the Clerk of Courts in Kalgoorlie and to explain the reasons why the Commission took possession of the Boulder unit. The Minister also requested him to collect his personal belongings, located by the Bailiff in the Boulder unit within 14 days.
73 On 26 April 2005, the applicant emailed the Minister. He expressed disappointment at how the Commission had treated him and suggested that the Commission was racist.
74 In evidence before the Tribunal, both in documentary accounts of his complaint and the oral testimony that he gave the Tribunal, Mr Lennon explained that he was upset both at the process by which he did not receive the initial offer of accommodation in Kalgoorlie in time to take that up and, as a result, following the reinstatement of his application, only received accommodation in Boulder. The Kalgoorlie
(Page 13)
- accommodation would have suited him much more, was centrally located and near all relevant services, from his point of view. The Boulder unit, by contrast, was not so well located, albeit it was new accommodation.
75 As to the circumstances in which the Tenancy Agreement in respect of the Boulder unit was terminated and possession recovered, Mr Lennon felt strongly that he had been treated with disrespect regarding his cultural responsibilities of sorry business at the time of his father's passing away.
The statutory law relating to equal opportunity - racial discrimination
76 There are a number of provisions of the Equal Opportunity Act 1984 (WA) (EO Act) that are potentially relevant to Mr Lennon's complaints, the subject of these proceedings.
77 Racial discrimination contrary to s 36(1): The first, by s 36(1) of the EO Act a person (the "discriminator") relevantly discriminates against another person (the "aggrieved person") on the ground of race if, on the ground of -
• the race of the aggrieved person;
• a characteristic that appertains generally to persons of the race of the aggrieved person; or
• a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator -
• treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
• segregates the aggrieved person from persons of a different race.
- Racial discrimination contrary to s 36(1a): by s 36(1a) of the EO Act the discriminator also relevantly discriminates against an aggrieved person on the ground of race if, on the ground of -
• the race of;
• a characteristic that appertains generally to persons of the same race as; or
- • a characteristic that is generally imputed to persons of the same race as,
any relative or associate of the aggrieved person, the discriminator -
• treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat persons; or
• segregates the aggrieved person from persons,
who are not of that race.
78 Racial discrimination contrary to s 36(2): by s 36(2) of the EO Act, the discriminator also relevantly discriminates against the aggrieved person on the ground of race if the discriminator requires the aggrieved person to comply with a requirement or condition -
• with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply;
• 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.
79 Racial discrimination contrary to s 47(2): by s 47(2) of the EO Act, it is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's race -
• by denying the other person access, or limiting the other person's access, to any benefit associated with accommodation occupied by the other person;
• by evicting the other person from accommodation occupied by the other person; or
• by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.
(Page 15)
80 The term "race" is defined by s 4(1) of the EO Act to include colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of the Act.
81 The term "accommodation" is defined by s 4(1) to include residential accommodation.
82 In proceedings in the Tribunal an applicant must prove on the balance of probabilities that a respondent has discriminated against him or her in one or other of the ways described in the EO Act. If the respondent relies on an exception to the EO Act to support its conduct, the respondent must prove on the balance of probabilities that the exception applies. See generally Frost and Western Australian Police Service [2005] WASAT 150 at [23].
83 Discrimination under the EO Act may, in effect, be direct or indirect. Conduct contrary to s 36(1) or s 36(1a) would ordinarily be considered an example of direct discrimination. Conduct offending s 36(2) or s 47(1) or s 47(2) would ordinarily provide an example of indirect discrimination.
84 An aspect of the direct discrimination provisions such as s 36(1) and s 36(1a) is that the aggrieved person has been treated "less favourably" than other relevant persons mentioned. Inferences may need to be drawn from conduct to determine whether there has been less favourable treatment. If racial discrimination is the most probable explanation for a discriminator's conduct, then the inference will be drawn: see Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3 (19 April 1995).
85 By virtue of s 5 of the EO Act, the aggrieved person's race does not have to be the only, or even the dominant or substantial reason for the less favourable treatment, but it must be at least one reason for the less favourable treatment (see Collard v Department of Housing and Works [2004] WAEOT 13 at [63]).
86 As explained, indirect discrimination arises under provisions like s 36(2) where persons are required to comply with a "requirement or condition". This particular phrase is given a broad, rather than technical meaning: see State of New South Wales v Amery [2006] HCA 14 per Gummow, Hayne, and Crennan JJ at [63], by reference to the Anti-Discrimination Act 1977 (NSW), which is similar in relevant respects to the EO Act and Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 407 per McHugh J.
(Page 16)
87 However, for something to be a requirement or condition in relation to a matter it must be separate from that matter: Waters & Ors v Public Transport Corporation at 361 per Mason CJ and Gaudron J (Dean J agreeing), 394 per Dawson and Toohey JJ.
88 A person imposes a requirement or condition in providing goods or services when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed: Waters & Ors v Public Transport Corporation, per McHugh J at 407.
89 Whether a requirement or condition is reasonable is a question of fact to be determined by weighing all the relevant factors, which will differ from one case to the next, in which all the circumstances are be taken into account: Waters & Ors v Public Transport Corporation per Dawson and Toohey JJ at 395; State Housing Commission v Martin (Unreported, Full Court Supreme Court of Western Australia, 19 October 1998, Lib 980699 per White J at page 19).
90 The reasonableness of a requirement or condition is an essential element in proving unlawful discrimination, and the onus of proving this element lies with the aggrieved person: Waters v Public Transport Corporationper McHugh Jat 411.
91 The inability of an aggrieved person to comply with a requirement or condition must arise by reason of the cultural imperatives or other attributes of that person's race. For example, where the aggrieved person is physically able to, but does not, comply with the requirement or condition in question, because to do so would be inconsistent with some cultural attribute of that person's race, or where the aggrieved person is physically not able to comply with the requirement or condition by reason of an actual inability which is attributable to that person's race: State Housing Commission v Martin per White J at page 22.
92 As noted earlier, an employer is vicariously liable for unlawful acts of an employee which are done in connection with the employment of the employee: s 161 of the EO Act.
93 It is also well understood that the proceedings in a Tribunal of this kind, under the EO Act, do not constitute general administrative review proceedings but are more in the nature of party and party proceedings in which the Tribunal must determine whether discrimination has occurred as alleged in contravention of a provision of the EO Act: see Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
(Page 17)
- and Summerville and Department of Education & Ors [2006] WASAT 174. Thus, any finding of error on the part of a respondent government agency is not of itself evidence of unlawful discrimination: Collard v Department of Housing and Works at [75] - [76].
Whether evidence of breach of the race discrimination provisions of the EO Act in this case?
94 It follows from what has just been laid out that the manner in which the Commission treated Mr Lennon in this case must be assessed in the light of the statutory, administrative, and legal arrangements that existed at relevant times.
95 So far as the first issue described above is concerned, there is no evidence to show that the Commission directly discriminated against Mr Lennon under s 37(1) or s 37(1a) when it sent him an offer of accommodation by ordinary post when he was then residing at Wanarn and requiring him to respond within three days of the date of the letter. It is also difficult to find any indirect discrimination under s 36(2) or unlawful conduct under s 47(1).
96 Much can be said of the Commission's apparent lack of knowledge as to know where Wanarn was and how long it would take for a letter to get there by ordinary post. Much can also be said about whether or not, in all circumstances, communicating an offer of accommodation by a letter sent through the ordinary post is the most desirable way to let people, particularly in remote places, know of an offer. One would think the Commission would ordinarily give careful thought to the best way to communicate with particular applicants - other than assume ordinary post will always be the best means.
97 However, the evidence also shows that the inherent problem was quickly recognised by Ms Blade on behalf of the Commission and she reinstated the applicant's application when he was living in Wanarn. While he missed out on receiving accommodation at more central premises in Kalgoorlie, he was quickly able to avail himself of the offer of the Boulder unit.
98 While Mr Lennon would have much preferred to have lived in the Kalgoorlie premises rather than the Boulder unit, it cannot be said that the unfortunate train of events that led to him accepting the offer of the Boulder unit involved any discrimination on the ground of race, whether under s 36(2) or unlawful conduct under s 47(1). Nor did it involve any other form of discrimination under the EO Act.
(Page 18)
99 Mr Lennon was not by this administrative process treated less favourably than in the same circumstances or in circumstances that are not materially different, from the way the Commission treats or would treat a person of a different race; nor did the Commission segregate Mr Lennon from persons of a different race. None of these things happened, so far as the administrative process of making the offer was concerned, on the ground of the race of Mr Lennon, or a characteristic that pertains to Aboriginal people or a characteristic generally imputed to Aboriginal persons.
100 Nor can it be said that Mr Lennon was obliged to comply with a requirement or condition than a substantially higher proportion of persons who are not Aboriginal comply with or are able to comply with, which is not reasonable, having regard to the circumstances of the case and with which he was not able to comply.
101 Similarly, it cannot be said that Mr Lennon was denied access to accommodation on the ground of his race by the Commission.
102 As noted, it was an unfortunate sequence of events that led to the State Housing Commission initial offer to Mr Lennon, while he was at Wanarn, not being properly communicated in a timely way. But none of that involves any racial discrimination or unlawful conduct under the EO Act.
103 So far as the eviction of Mr Lennon from the Boulder unit is concerned, it is important to assess the sequence of events and decisions taken in the light of the following matters:
• the Tenancy Agreement and in particular cl 2 relating to the applicant's obligation to pay rent;
• the Commission's policies and procedures, in particular, the "Allocations Policy" and the "Debt Recovery Policy" be read in conjunction with the "Rental Operations - Legal Recovery Procedures Manual", which the Commission's officers are properly bound to consider in managing properties. For them to do this ensures consistency and equal treatment of all persons;
• the rights and obligations of owners and tenants under the Residential Tenancies Act 1987 (WA);
• the failure by the applicant to meet his obligations to pay rent of $98.60 per week as it became due;
(Page 19)
- • the efforts by the officers of the Commission to assist the applicant to meet his obligations under the Tenancy Agreement.
104 In short, the Tenancy Agreement was terminated and possession of the Boulder unit recovered by the Commission because of the non-payment of rent, not for any other reason.
105 While it is most unfortunate, so far as his occupancy of the Boulder unit is concerned that Mr Lennon was called away from Wanarn and had to return to Port Augusta to meet his cultural obligations in respect of his father, and to remain there upon his father's passing, and thereby lost the practical opportunity to return to Kalgoorlie, take up new employment and to occupy the Boulder unit, none of these personal factors were themselves the reason, directly or indirectly, for the Commission's determination of the Tenancy Agreement and the recovery of possession of the Boulder unit.
106 In the end, as in the case of the initial offer of accommodation of the Kalgoorlie premises, the acts of the Commission and its officers concerning the non-payment of rent and the ultimate obtaining of the court order and the Warrant of Execution and recovery of possession of the Boulder unit, were not "on the ground of" the applicant's race, but simply because Mr Lennon did not comply with the Tenancy Agreement in respect of the payment of rent.
107 The evidence does not show any basis for concluding that the Commission discriminated under s 36(1) or s 36(1a) or that it acted unlawfully under s 47(2). It did not evict Mr Lennon on the basis of his race.
108 In no relevant sense can it be said that Mr Lennon was treated "less favourably" within the meaning of the EO Act. The evidence shows that any other Commission tenant who had breached his or her Tenancy Agreement in similar circumstances would be treated in the same way. This indeed is to be expected given the shortage of public housing, the waiting lists for public housing and the need for all persons suffering housing disadvantage, including Aboriginal persons, to have their expectations fulfilled by the Commission.
109 In general terms, while the applicant considered that the Commissioner was "out to get him" in the sense of terminating the Tenancy Agreement and to have him evicted from the Boulder unit, the evidence discloses otherwise. There is no doubt that, at some point, the
(Page 20)
- Commission lost patience with Mr Lennon and decided to proceed to obtain a Warrant of Execution to have him evicted from the premises. But this only followed a long period through December 2004, up until April 2005, during which various commitments made by Mr Lennon to pay rent, were not fully met. It is not surprising that, in the end, the Commission decided to recover possession of the Boulder unit and to reallocate the unit to another person on its waiting list. While Mr Lennon has a strong sense of grievance about this whole process, his grievance is not one that finds expression as racial discrimination under the EO Act.
110 In these circumstances there is no need to go on to consider the third issue initially identified, as to whether or not the applicant suffered any damage as a result of any unlawful discrimination.
Conclusion and orders
111 For the reasons set out above, the applicant has failed to show that the State Housing Commission relevantly discriminated against him under the EO Act. In those circumstances the Tribunal would make the following order:
1. The complaint of Bruce Lennon against the State Housing Commission, initially made to the Commissioner for Equal Opportunity under the Equal Opportunity Act 1984 (WA) on 6 August 2004 and referred to the State Administrative Tribunal by the Commissioner for Equal Opportunity under cover of letter dated 7 March 2006, and the proceedings in the State Administrative Tribunal, are dismissed.
- I certify that this and the preceding [111] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
3
5
3