Penny and Centrecare Inc
[2008] WASAT 122
•28 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: PENNY and CENTRECARE INC [2008] WASAT 122
MEMBER: MR M ALLEN (SENIOR MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
HEARD: 4 FEBRUARY 2008
DELIVERED : 28 MAY 2008
FILE NO/S: EOA 5 of 2007
BETWEEN: KATHLEEN PENNY
Applicant
AND
CENTRECARE INC
Respondent
Catchwords:
Equal opportunity Allegation of indirect discrimination on the ground of race in relation to accommodation Tenancy agreement for accommodation offered to elderly Aboriginal couple containing term that the property was to be occupied only by those two people and occupancy by other people may result in tenancy being terminated Findings that, on the evidence before the Tribunal, it had not been established that such terms could be complied with by a substantially higher proportion of persons who are not Aborigines; or that the applicant was not able to comply with the terms -Finding that the terms were reasonable in all the circumstances of the case Application dismissed
Legislation:
Disability Discrimination Act 1992 (Cth), s 6
Equal Opportunity Act 1984 (WA), s 36(2), s 47, s 93(1)(b), s 107(3)(a), Pt III
Residential Tenancies Act 1987 (WA)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr I Curlewis
Solicitors:
Applicant: Self-represented
Respondent: Lavan Legal
Case(s) referred to in decision(s):
Frost and Western Australian Police Service [2005] WASAT 150
Lennon and State Housing Commission [2006] WASAT 344
Rainsford v State of Victoria [2008] FCAFC 31
State Housing Commission v Martin (unreported, FCt SCt of WA, Library No 980699, 19 October 1988
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, Mrs Penny, and her husband (now deceased) were offered, and accepted, the tenancy of a two‑bedroom unit within a complex of five units for retired Aboriginal persons. The complex was owned by the Department of Housing and Works but the unit was made available to Centrecare by way of a head lease so that the unit could be offered by Centrecare to Mr and Mrs Penny. The tenancy agreement entered into between Mr and Mrs Penny and Centrecare contained terms that the unit was to be occupied only by two persons, namely Mr and Mrs Penny, and that occupancy by other persons could result in the tenancy agreement being terminated.
The tenancy agreement was eventually terminated and Mr and Mrs Penny evicted from the unit because (as the Tribunal found) other members of Mrs Penny's family had lived at the unit and because of a large number of complaints from neighbours about antisocial behaviour by persons staying at the unit.
The issue to be determined by the Tribunal was whether the offering of accommodation on such terms constituted indirect discrimination on the ground of race contrary to the Equal Opportunity Act 1984 (WA).
The evidence presented to the Tribunal was not sufficient to enable the Tribunal to conclude that tenancy terms such as those described above could be complied with by a substantially higher proportion of persons not of the Aboriginal race, or that Mrs Penny was not able to comply with such terms by reason of her Aboriginality.
The Tribunal was able to conclude on the evidence that the terms in question were reasonable in all the circumstances of the case.
The Tribunal found that Centrecare had not discriminated against Mrs Penny and dismissed the application.
Background
In January 2007, the Commissioner for Equal Opportunity (Commissioner) referred to the Tribunal under s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (EO Act) complaints made by Mrs Kathleen Penny (Mrs Penny) against the Department of Housing and Works of Western Australia (Department) and Centrecare Inc (Centrecare) alleging unlawful discrimination on the ground of race in the area of accommodation.
The referral informed the Tribunal that the Commissioner had received complaints from Ms Dulcie Donaldson (Ms Donaldson), an employee of the Derbarl Yerrigan Health Service Inc, on behalf of Mrs Penny in July 2005. The complaints originally alleged discrimination on the grounds of race and family status in the area of accommodation against the Department and Centrecare, but the complaint of discrimination on the ground of family status had not been accepted by the Commissioner.
The complaints arose out of the occupancy by Mrs Penny and her husband (now deceased) of a property at Unit 2, No 32 Charles Street, Midland (the property) between June 2004 and April 2005. The property was owned by the Department, but Mrs Penny and her husband occupied it under a tenancy agreement with Centrecare, which, in turn, held a head lease from the Department. It was not in dispute between the parties that the property was a two‑bedroom unit in a complex of five similar units specifically allocated by the Department for occupancy by elderly, retired Aboriginal persons. It was alleged that the terms and conditions of the tenancy agreement (further details of which are set out below) were discriminatory in that they limited the number of persons who could occupy the property; that Mrs Penny had been unfairly treated while a tenant at the property; and that the Department had discriminated against Mrs Penny by its failure to rehouse Mrs Penny and her husband after their tenancy of the property was terminated.
Mrs Penny was represented in the proceeding by staff of the Commissioner up to and including a final directions hearing on 23 November 2007, at which time the Commissioner's representation ceased. By that time Mrs Penny (via the Commissioner) had filed a statement of issues, facts and contentions (SIFC) relating to the allegations made against the Department and Centrecare. At the directions hearing on 23 November 2007, the Tribunal ordered that Mrs Penny was to file and serve the documents upon which she intended to rely; each respondent was to file and serve a responding SIFC and bundles of documents upon which they intended to rely; each party was to file and serve witness statements; and the matter was listed for final hearing on 4 February 2008. Service of documents on Mrs Penny was to be effected by sending the documents to Ms Donaldson at the address of Derbarl Yerrigan in East Perth.
Approximately two weeks before the hearing, Mrs Penny informed the Tribunal that she wished to withdraw her claim against the Department, and the Tribunal subsequently made an order on 24 January 2008 that, pursuant to s 107(3)(a) of the EO Act, the matter was discontinued against the Department.
In the meantime, both the Department and Centrecare had filed a responding SIFC, and Centrecare also filed a bundle of documents, which subsequently became exhibits R1 ‑ R17 in the proceeding.
At the hearing, Mrs Penny represented herself with assistance from Ms Donaldson, and Mr Curlewis represented Centrecare. Consideration was given at the outset to whether the hearing should proceed on that day or be adjourned to enable Ms Penny to make further attempts to obtain legal representation. The Tribunal determined on balance, and not without some reluctance, that the matter should proceed on that day, having regard to inconvenience to Centrecare if it did not, the Tribunal's lack of confidence that an adjournment was likely to result in legal representation being arranged, and to the history of the matter, including the following earlier steps:
(a)On 19 October 2007, a directions hearing was adjourned to enable Mrs Penny's representative (the Commissioner) to "… continue to seek to obtain instructions …"
(b)On 2 November 2007, the resumed directions hearing was further adjourned to hear applications by the two respondents to strike out the claims for want of prosecution. Following that hearing, the Tribunal wrote to Mrs Penny and Ms Donaldson informing them of the applications and giving notice of a new hearing on 23 November 2007.
(c)Mrs Penny attended the hearing on 23 November 2007, when the orders referred to above were made. She was, therefore, aware of the date of the final hearing to be held on 4 February 2008 for more than two months and she had, it appears, the benefit of advice from some source regarding the withdrawal of the claims against the Department.
Statutory framework and issues to be determined
Part III of the EO Act deals with discrimination on the ground of race. Subsections 36(1) and 36(1a) define what is usually referred to as "direct discrimination" by a discriminator against an aggrieved person on the ground of race. Those provisions are not relevant in the current proceedings.
Subsection 36(2) defines what is usually referred to as "indirect discrimination" and relevantly provides that a discriminator discriminates against an aggrieved person on the ground of race:
"… if the discriminator requires the aggrieved person to comply with a requirement or condition ‑
(a)with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply."
Section 47 of the EO Act deals specifically with discrimination on the grounds of race in relation to accommodation in the following terms:
"47. Accommodation
(1)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 ‑
(a)by refusing the other person's application for accommodation;
(b)in the terms or conditions on which accommodation is offered to the other person; or
(c)by deferring the other person's application for accommodation or according to 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 another person on the ground of the other person's race ‑
(a)by denying the other person access, or limiting the other person's access, to any benefit associated with accommodation occupied by the other person;
(b)by evicting the other person from accommodation occupied by the other person; or
(c)by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.
(3)Nothing in this section applies to or in respect of ‑
(a)the provision of accommodation in premises if ‑
(i)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
(ii)the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (i) or a near relative of such a person;
or
(b)accommodation provided by a charitable or other voluntary body solely for persons of one race."
The SIFC filed on behalf of Mrs Penny by the Commissioner identified the issue to be determined in the proceeding in relation to Centrecare as being whether Centrecare (through its officers and employees) unlawfully discriminated against Mrs Penny on the ground of her race in relation to her occupancy of the property by requiring her to comply with a requirement or condition ‑
"(a)with which a substantially higher proportion of non‑aboriginal persons complied or could comply;
(b)which was unreasonable in the circumstances; and
(c)with which the applicant did not or was not able to comply
contrary to sections 36(2) and 47(2)(b) [of the EO Act]."
The SIFC particularised the requirement or condition in the following way:
"(a)The condition imposed on [Mrs Penny] was that she was not to cause or permit the property to become 'overcrowded'.
(b)Aboriginal people because of their cultural obligations to their immediate and extended family are less able to comply with that condition.
(c)Conversely, a higher proportion of non‑aboriginal tenants are able to comply with the condition because they are not obligated to house and provide for their immediate and extended families to the same extent as Aboriginal tenants."
The SIFC contended that the condition that was imposed was not reasonable because:
"(a)[Centrecare] failed to sufficiently take into account [Mrs Penny]'s particular circumstances, or any alternative arrangement that would allow [Mrs Penny] to accommodate some or all of her relatives in their time of need;
(b)[Centrecare] assumed without justification that because [Mrs Penny]'s property was 'overcrowded', she and her relatives were responsible for anti‑social behaviour allegedly occurring in and around the unit complex where [Mrs Penny] lived."
The SIFC filed and served by Centrecare proceeded on the basis that the issue to be determined was whether Centrecare had required Mrs Penny to comply with a condition for the purposes of subsection 36(2) and subsection 47(2)(b) of the EO Act. Centrecare contended that the tenancy agreement entered into by Mrs Penny and her husband did contain material terms (further details of which are referred to below); that during the course of the tenancy, numerous complaints were received about overcrowding and antisocial behaviour in and around the property; that a number of notices of breach of agreement were issued; that Mrs Penny and her husband were informed that the tenancy would not be renewed when it expired at the end of December 2004; and that Centrecare took proceedings in the first few months of 2005 to have Mrs Penny and her husband vacate the property, culminating in their eviction on 5 April 2005.
It will be apparent from the above that the contention in Mrs Penny's SIFC that Centrecare's conduct contravened s 36(2) and s 47(2)(b) of the EO Act does not specify clearly the precise nature of Mrs Penny's allegations. As noted above, s 36(2) defines what constitutes indirect discrimination, but one must look to other sections of Pt III of the EO Act to identify particular acts of discrimination that are unlawful. Section 47 deals with unlawful discrimination in relation to accommodation on the grounds of race. The reference to s 47(2)(b) in Mrs Penny's SIFC is a reference to discrimination by way of evicting her and her husband from accommodation, whereas it is clear that the allegation made by her, and responded to by Centrecare, was, in essence, that the act of discrimination was in the imposition of terms or conditions upon which the accommodation was offered to Mr and Mrs Penny ‑ that is, a reference to s 47(1)(b) of the EO Act rather than s 47(2)(b).
In the circumstances, we understand the nature of Mrs Penny's claim against Centrecare to be that the offer of accommodation in the property to her and her husband on particular terms and conditions was discriminatory because the terms and conditions involved Mr and Mrs Penny complying with requirements or conditions of the type referred to in s 36(2) of the EO Act. In other words, the allegation was one of discrimination contrary to s 47(1)(b). However, in case we are wrong in analysing the nature of the claim in that way, we will consider also whether there has been unlawful indirect discrimination contrary to s 47(2)(b) by virtue of the circumstances in which Mr and Mrs Penny were evicted from the property in April 2005, in particular because of the asserted failure to comply with terms and conditions of the tenancy agreement.
Although it was not contended in the SIFC filed by Centrecare, Mr Curlewis at the hearing raised the question of whether subsection 47(3)(b) is applicable in this case and operates so as to make s 47 as a whole inapplicable in the present case.
The requirement or condition in this case
Although there was some initial dispute at the hearing as to whether or not Mrs Penny and/or her husband had entered into or signed written tenancy agreements, it subsequently became common ground between the parties (and we so find) that, on 30 June 2004, Mr and Mrs Penny signed a tenancy agreement for the property for a fixed term of three months commencing on 30 June 2004 and expiring on 29 September 2004 (Exhibit R1). Although she initially said in her oral evidence that she had not seen or signed a tenancy agreement, Mrs Penny subsequently identified signatures of herself and her late husband on that document, and her signature on Exhibit R5, which is an identical tenancy agreement dated 8 October 2004 relating to the period of three months commencing on 29 September 2004 and expiring on 28 December 2004. In her evidence, Mrs Penny ultimately agreed that she had seen the tenancy agreements and that a Centrecare officer (Ms Pope) had explained to her all the terms and conditions set out in the agreements.
As noted above, Mrs Penny's SIFC identified the condition imposed on her as being that she was not to cause or permit the property to become "overcrowded". Centrecare's SIFC contended that the tenancy agreement included a number of material terms, some of which are set out in par 7.2 of the SIFC. Identifying with some precision precisely what are the relevant requirements or conditions is, we consider, important ‑ and we consider the following to be material in the present case:
(a)The tenancy agreement is contained on a printed document that Centrecare obviously uses for its tenancy arrangements. The opening clause (cl 1.1) makes provision for inserting the maximum number of adults and children who can occupy residential premises. In the case of Mr and Mrs Penny, that clause provides that the premises are "… to be occupied by not more than two adults and nil children …"
(b)Clause 2.1(b) provides an acknowledgement by Mr and Mrs Penny as the tenants that the premises "… are for the express use of the family members as agreed above". This is obviously a reference to Mr and Mrs Penny.
(c)Clause 2.11(a) contains an acknowledgement by the tenant that the premises "… are for private use only, to be occupied by the number of family members as stated and agreed to herein, and accepts full responsibility for any guests invited onto the property" (emphasis in original).
(d)Clause 2.11(c) provides that "The tenant and his/her family shall not cause any nuisance, including the use of bad language and other expressions of unacceptable behaviour, which may negatively impact on surrounding neighbours' quiet enjoyment" (emphasis in original).
(e)Clause 4.2 contains special conditions specifically added to Mr and Mrs Penny's tenancy agreement in the following terms:
"4.2The tenants acknowledge that this unit is being offered on condition that it is to be occupied only by Kathleen and Maitland Penny. The tenants acknowledge that the unit is part of a retirement complex. The tenants acknowledge that should other family members also stay at this unit it could result in Centrecare asking for vacant possession immediately."
We consider that the tenancy agreements in total constitute the terms and conditions upon which Mr and Mrs Penny were offered accommodation in the property (for the purposes of s 47(1)(b) of the EO Act) and the requirements or conditions with which they were required to comply (for the purposes of s 36(2) of the EO Act). However, we consider that the various clauses referred to in the preceding paragraph are the terms and conditions that are said to be objectionable and discriminatory for the purposes of those sections. We note that none of the terms refer specifically to "overcrowding", but we consider that the import of the terms is that the number of persons who may live in the property is limited to two, namely Mr and Mrs Penny.
The evidence
The Tribunal took into evidence the following documents:
•Exhibits C1 – C 11 ‑ Commissioner's referral and Attachments
•Exhibits R1 ‑ R17 ‑ Centrecare's bundle of documents
•Exhibit R18 ‑ Witness statement of Brian McChesney
•Exhibit R19 ‑ Witness statement of Tony Pietropiccolo
•Exhibit R20 ‑ Witness statement of Leanne Stronnen
•Exhibit R21 ‑ Centrecare's Annual Report for 2006/07.
In her oral evidence, Mrs Penny said that she had previously been a tenant of Centrecare in a house in Balga and had looked after her granddaughter's children whilst her granddaughter was in prison. She had subsequently transferred the tenancy of that house to her granddaughter, and she and her husband had later moved out of that house. There was some dispute in the evidence about the circumstances in which Mr and Mrs Penny had left the Balga house, but that is not relevant to the current case, and we note Ms Stronnen's evidence on the point set out at [49] below.
Mrs Penny said that after leaving the Balga house she and her husband had moved into a house in North Perth occupied by their son and a large number of other members of their extended family, which was not a long‑term solution. They had applied to the Department for housing, but they had been placed on a wait list because of an unsatisfactory tenancy history with the Department. At about that time they had been told by Centrecare staff members that Centrecare could not help them with housing because Centrecare was only funded to provide housing to persons with dependents, and Mr and Mrs Penny did not at that time have any dependents with them.
However, soon after that, a Mr Green from Centrecare had approached them and told them Centrecare might be able to offer them the property in Midland, which the Department had or was prepared to make available under a head lease arrangement. Mrs Penny said she had inspected the property and decided to take it, although she had some doubts about doing so ‑ namely that she was concerned that other Aboriginal families were living in the complex and she hoped they would not make "trouble" and she did not want to "… get the blame for trouble if anybody's disturbing the peace…". Also, she said that she didn't want to sign the tenancy agreement "… because I was told that there was no dependent children and … I was thinking I was doing wrong there, because Centrecare said that there was no dependent children were allowed to be with the elderly family … but then I took it because we had no home." Mrs Penny said she had not had any real discussion with Centrecare about the contents of the tenancy agreement because she was "… just happy to get a house …".
In relation to the reference in cl 4.2 of the tenancy agreement to the property being part of a retirement complex, Mrs Penny said that she was not aware of that at the time. Centrecare had not mentioned it, and there were some young people amongst those who were living in the other units in the complex.
Mrs Penny agreed that she knew the property was to be occupied only by her and her husband, that she was happy with that restriction, and that she had told her grandchildren "… they have to go, and they was going".
Mrs Penny described what she said were her cultural responsibilities as an Aboriginal elder in the following terms:
"I always had my great‑grandchildren with me and my grandchildren. I ‑ an Aboriginal family, they don't turn their families away. Like through our culture, we love our families and when the ‑ when it's raining ‑ I am not going to send my great grandkids and my granddaughter with her children onto the street when it's raining and if they're homeless".
Mrs Penny said that she had told her family that the property was only for her and her husband and that they could not stay there for more than a night or two. She said she had told family members this "… a lot …". She had done this because she knew that she could not have other people living there. In relation to her granddaughter and her children, Mrs Penny said that when they became homeless (because they no longer had the Balga house) they:
"… went from house to house. They went to her brother's house first and then back to the uncle then came over to me and I said 'I couldn't have yous [sic], because' I said, 'we've only got a two bedroom property'".
Mrs Penny subsequently said that:
"I am an Aboriginal person. I am an elder and I am not going to turn my great grandkids, my granddaughter, my family away from me, when I can give them assistance of ‑ they want a roof over their heads and they're out in the rain, I am not going to ask [sic] my children away for Centrecare, Homeswest or anybody. I am an aboriginal elder and I love my family and I went through that all the way through many years."
Later on in the hearing, we asked Mrs Penny to explain the possible contradiction between her evidence that, on the one hand, she had cultural obligations of the kind described above, and her other evidence that she had told her family that the property was for her and her husband alone and that she had told family members that they could not stay for more than a night or two. Mrs Penny said that she would not turn her family away:
"but when I signed up this property and they said it's only for two people, I thought to myself how can that be for just ‑ I know it's for me and my husband, it should be, but then it's very hard to turn your family away. In our culture we don't do these things."
She then added that:
"I was able to tell them [that they could not stay] and then I felt ‑ you know, I felt sorry that I'd turned my own family away to try and live up to what ‑ this document for me to go by."
Mrs Penny said that subsequently the family came back to her property "… and then I just ‑ I couldn't send the family away". This was a reference to her granddaughter and her children, who Mrs Penny acknowledged stayed for a period of time at the property.
In her evidence, Mrs Penny maintained that, apart from her granddaughter and her children, no other family member stayed more than a few nights at time, involving visits at weekends and holidays, such as Christmas and Easter. She did not accept that at any time any of her visitors had engaged in antisocial behaviour of any kind, saying that the occupants of other units in the complex had caused trouble and that any complaints made to the Police, the Department or to Centrecare about behaviour at the property were not justified or must have related to the occupants of other units. She said that staff members of Centrecare or the Department who spoke of complaints of antisocial behaviour from her property were not telling the truth.
As noted above, the witness statements of Mr McChesney and Mr Pietropiccolo were admitted into evidence as Exhibit R18 and Exhibit R19, and neither was required to give oral evidence.
Mr McChesney is the Coordinator of Property Services with the Department, and in late 2004/early 2005, he was the Acting Senior Accommodation Manager and Area Manager. The property in Midland came within his responsibilities. From about October 2004 until March 2005 various complaints were received by the Department about antisocial and disruptive behaviour emanating from persons resident at the property occupied by Mr and Mrs Penny. These complaints were referred to Centrecare as the manager of the property. These complaints were ongoing and police were called to the premises to deal with disturbances on a number of occasions. Centrecare consulted the Department about its decision to seek the eviction of Mr and Mrs Penny, and Departmental records show that the eviction occurred at the end of a lengthy process in the face of continuing antisocial behaviour from the property.
Mr Pietropiccolo is a Director and Chief Executive Officer of Centrecare and has been involved in the social welfare sector ‑ in paid and voluntary capacities ‑ for over 30 years. Centrecare has provided services to disadvantaged people for many years in Western Australia and has an underpinning value statement that its clients will not be discriminated against on any grounds. The organisation has ISO 9001/2000 Quality Assurance certification.
Exhibit R19 goes on to say that Centrecare has a large number of Aboriginal staff and a large proportion of its clients are of Aboriginal descent. In April 2005 Centrecare considered that it had no alternative but to evict Mr and Mrs Penny because the disruption and nuisance in the neighbourhood emanating from the property had continued since October 2004 without reduction in its intensity and to the detriment to other residents in the area. After obtaining an eviction order from the Court, Centrecare had delayed executing the eviction for several weeks in the hope that the conduct would improve, but it did not. Mr and Mrs Penny were subsequently housed in a motel.
Mr Pietropiccolo said that the standards that Mr and Mrs Penny were required to maintain and the contractual obligation that was required were no different to those required of any other person. The basic requirement was that only Mr and Mrs Penny reside at the property, it having only two bedrooms and being within a complex reserved for elderly Aboriginal persons.
Ms Stronnen's witness statement (Exhibit R20) states that she has been employed in various capacities by Centrecare since 1993, and is currently the Executive Manager for Centrecare's Accommodation and Outreach Services, State Government Services and Clinical Policy development. She initially met Mrs Penny in mid‑2003 and, in the course of her employment, has provided support to her or other members of her family from time to time since then.
Soon after Mr and Mrs Penny took up residence in the property, it became apparent that a granddaughter was residing at the property, and a breach notice was sent on 9 July 2004 (Exhibit R3), but the breach was not remedied. Rather, the number of unauthorised persons residing at the property increased in subsequent months ‑ being up to 23 persons at one time. Ms Stronnen personally observed, when visiting the property, at least 20 persons who were clearly residing at the property on more than a temporary basis.
From October 2004, the Department or Centrecare officers had made Ms Stronnen aware of complaints by other residents of the locality about noise, abusive language and other antisocial and disruptive behaviour coming from the property. Exhibit R20 sets out details of a selection of the complaints received. A further breach notice was sent on 5 November 2004 (Exhibit R8) to no avail, and on 23 November 2004, a notice terminating the tenancy agreement and requiring possession of the property on 6 December 2004 was given (Exhibit R9).
Centrecare elected not to act on the notice of termination, but did not renew the agreement when it expired on 28 December 2004. In January 2005, Centrecare applied to the Court for orders for recovery of the property and obtained orders on 28 January 2005. That order was not acted on immediately and Mr and Mrs Penny continued to reside in the property. Further complaints were received (details of which are set out in Exhibit R20), and by letter of 29 March 2005 (Exhibit R14) Ms Stronnen informed Mr and Mrs Penny that if the number of residents was not reduced to two by 29 March 2005, the bailiff would proceed to take possession of the property ‑ which occurred on 5 April 2005. For some time prior to that date, Ms Stronnen had worked with the Department of Community Development, other government and non‑government agencies, and other members of Mrs Penny's family to make alternative accommodation arrangements for various children who were living at the property at the time of eviction. Upon eviction, the property was found to be in a very dilapidated state, details of which are set out in Exhibit 20, costing $4839.46 to repair.
Ms Stronnen said that Mrs Penny's Aboriginality was irrelevant to Centrecare. All the other residents of the complex were of Aboriginal descent and some of the complaints made were made by them. At any one time, Centrecare has from 50% to 70% of its housing and outreach support programs based at its Cannington offices occupied or utilised by Aboriginal people and families (and can be up to 80%). Over 20% of Centrecare's staff members are Aboriginal.
Ms Stronnen said that Mr and Mrs Penny's eviction occurred only after extensive efforts by Centrecare staff to obtain their cooperation to make sure that members of the extended family did not reside in the property, to the detriment of neighbours ‑ but this cooperation was not forthcoming and the overcrowding and antisocial behaviour persisted. The eviction was inevitable given the need for basic legal requirements of the Residential Tenancies Act 1987 (WA) to be maintained and the nuisance emanating from the property stopped.
In her oral evidence, Ms Stronnen gave evidence to the following effect:
(a)Mrs Penny had not been evicted from the Balga house by Centrecare. Rather, the tenancy of that house had been in the name of Mrs Penny's granddaughter and it was she who had asked Mrs Penny to leave that house.
(b)As a matter of policy, whenever Centrecare enters into a tenancy agreement, the property officer goes through and explains every line of the agreement with the tenant, who then signs it.
(c)She has been a social worker in the housing accommodation services area since 1993 ‑ for the first two years working only with Aboriginal people and since then working predominantly with Aboriginal people.
(d)In relation to what Mrs Penny said in her evidence about obligations of a cultural nature to house or support members of the extended family, and based on her experience as a social worker in this field, "… there is no difference in cultural obligations for any other family group in those circumstances".
(e)In relation to evidence by Mrs Penny that damage caused by a fire at the property had not been repaired by Centrecare, the first time Centrecare became aware of fire damage was after the bailiff had effected the eviction and the property was able to be inspected.
(f)She had attended a meeting at the property on 9 November 2004 with other Centrecare officers. She normally only attended such meetings when tenancies are in serious trouble, and the purpose of that meeting was to reinstate the tenancy on its original terms, and to deal with the overcrowding and antisocial behaviour issues.
(g)She was unable to comment on the age of the occupants of the other units in the complex because they were managed by the Department, other than that the Department had informed Centrecare that the complex was intended for elderly Aboriginal people and she knew from her own observations that one of the other units was occupied by an elderly Aboriginal man.
(h)To the best of her knowledge, Centrecare is an incorporated association under the auspices of the Catholic Church and is a registered charitable body.
Consideration
In proceedings under the EO Act, an applicant must prove on the balance of probabilities that a respondent has discriminated against him or her in one of the ways described in the EO Act. Where the respondent relies on an exception to the EO Act to support its conduct or to remove its conduct from the operation of the Act, 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] and Lennon and State Housing Commission [2006] WASAT 344 at [82].
At this stage, we must consider whether the terms and conditions identified above meet the description contained in s 36(2)(a) and s 36(2)(c) of the EO Act. As set out at [18] above, the SIFC filed on behalf of Mrs Penny contended that Aboriginal people are less able to comply with such conditions because of their cultural obligations to their immediate and extended family, whereas a higher proportion of non‑Aboriginal tenants are able to comply because they are not obligated to house and provide for their immediate and extended families to the same extent as Aboriginal tenants.
The only evidence before us concerning the existence, nature and extent of any cultural obligations of Aboriginal persons in relation to extended family members, and any impact those obligations may have upon their occupancy of accommodation ‑ in particular their ability to comply with conditions in tenancy agreements relating to numbers of occupants and behaviour ‑ came from Mrs Penny and Ms Stronnen. There was no evidence of the type referred to in State Housing Commission v Martin (unreported, FCt SCt of WA, Library No 980699, 19 October 1988) (Martin), per White J at pages 12 and 13. Nor was there evidence regarding:
•how many Aboriginal tenants in a position similar to that of Mr and Mrs Penny do or are able to comply with tenancy conditions that limit the number of person who can occupy premises;
•the composition of, and the number of persons within, a comparable class of "non‑Aboriginal tenants" or what proportion of such a class, however defined, comply or are able to comply with requirements or conditions of the kind in dispute in this case.
As we have noted above, Mrs Penny's evidence was somewhat contradictory in that she asserted the existence of cultural obligations on herself as an Aboriginal elder towards her extended family but, on the other hand, understood and accepted the provision in the tenancy agreement limiting occupancy of the property to her and her husband, and maintained throughout the hearing that she told family members (apart from her granddaughter and her children at one stage) that they could not stay at the property for more than a night or two at a time.
We are aware that Aboriginal people are disadvantaged in many aspects of life, accommodation and housing being one very important part of that disadvantage. We are quite prepared to accept that Mrs Penny considers herself to be under a cultural obligation to provide support and accommodation to family members in their time of need ‑ even to the point of allowing family members to stay at the property in breach of the terms of the tenancy agreement. However, as was pointed out by White J in Martin at pages 17 and 18, there must necessarily be a finite physical limit on the extent of that obligation, dependent on the number of persons whom it is physically possible to house.
On the other hand, Ms Stronnen gave evidence that, based on her experience as a social worker with disadvantaged people, especially Aboriginal people, there "… is no difference in cultural obligations for any other family group in those circumstances …". We understand that evidence to mean that, in Ms Stronnen's opinion, the obligations towards family in times of need felt by Aboriginal people is not materially different to the feelings of obligation held by non-Aboriginal people in similar circumstances. We accept that evidence because of Ms Stronnen's direct experience in this difficult field working with Aboriginal and non‑Aboriginal people.
The related question is whether it has been demonstrated that Mrs Penny did not or was not able to comply with the terms of the tenancy agreement. As we have noted, she maintained that she did comply in relation to the numbers of occupants (apart from her granddaughter and children) and in relation to the terms relating to no antisocial behaviour. Nevertheless, it is implicit in her claim that, to the extent there was any noncompliance with the provision regarding there being only two occupants, it was because she was unable to comply because of her cultural obligations. On the evidence of Ms Stronnen and Mr McChesney, we are satisfied that, from an early stage in the life of the tenancy, more than two persons did occupy the property ‑ at times many more. Moreover, we are satisfied that from at least October 2004 numerous complaints were received by the Department and Centrecare about the behaviour of those occupying the property, and that attempts by Centrecare to address those problems with Mrs Penny were unsuccessful. We find that Mrs Penny did not comply with the terms and conditions required of her.
In relation to whether Mrs Penny was able to comply with those terms and conditions, in Martin at page 22, White J said that s 36(2)(c) of the EO Act applies to the situation:
"… 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 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 … the aggrieved person does not comply with the requirement or condition because she cannot do so unless she is willing to give up her distinctive customs and cultural rules or, alternatively, she is unable to comply therewith by reason of some inherited and unalterable racial characteristic."
In the end, the evidence before us is lacking to such an extent that we do not consider (regardless of how the comparison groups may be defined) we are able to make any, much less any reliable, comparison between the proportion of non-Aboriginal tenants who could comply with tenancy terms limiting the number of occupants of premises and the proportion of Aboriginal tenants who could or could not equally comply. To that extent, we are not satisfied that the requirements of s 36(2)(a) of the EO Act have been made out by Mrs Penny, having regard to the onus on her.
Similarly, in relation to s 36(2)(c) of the EO Act, we are unable to conclude that any inability on the part of Mrs Penny to comply with the terms and conditions in question was attributable to her race or some inherited or unalterable racial characteristic. In so finding, we stress that we do so because of the limitations in the evidence before us (as discussed above), because we accept Ms Stronnen's evidence that there is no material difference between Aboriginal and non‑Aboriginal tenants in this context, and because the requirements of the tenancy agreement (which we discuss below in the context of reasonableness) were not so strict as to prevent Mrs Penny from providing short‑term emergency accommodation to relatives.
The above conclusions are sufficient to determine the case against Mrs Penny's claim. However, in case we are wrong in those conclusions, we have also considered whether the requirements of s 36(2)(b) of the EO Act have been made out by Mrs Penny ‑ that is, whether it has been shown that the terms and conditions complained of are "… not reasonable having regard to the circumstances of the case".
That a requirement or condition is not reasonable is an essential element in proving unlawful discrimination, and the onus of proving this element lies on the aggrieved person: Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 per McHugh J at 411, Lennon and State Housing Commission [2006] WASAT 344 at [90].
In Lennon and State Housing Commission [2006] WASAT 344 at [82], the Tribunal said that 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 to be taken into account. The same point was considered recently by a Full Court of the Federal Court in Rainsford v State of Victoria [2008] FCAFC 31 in the context of s 6 of the Disability Discrimination Act 1992 (Cth). The Full Court said (at [15]) that in determining what is a reasonable requirement or condition for the purposes of that provision, "… the Court must engage in a balancing exercise, weighing the inconvenience or harm of the requirement to the aggrieved person against countervailing reasons justifying the imposition of that requirement".
At [19] above, we set out how it was contended in Mrs Penny's SIFC that the condition that the property was not to become "overcrowded" was unreasonable because Centrecare failed to sufficiently take into account Mrs Penny's particular circumstances, or any alternative arrangement that would allow Mrs Penny to accommodate some or all of her relatives in their time of need; and because Centrecare assumed without justification that because Mrs Penny's property was "overcrowded", she and her relatives were responsible for antisocial behaviour allegedly occurring in and around the property.
We observe at the outset that the tenancy agreement did not, in terms, prohibit overcrowding. Rather, the agreement expressly provided for who could occupy the property ‑ and limited the number to two named people. Taken overall, the agreement did not prevent family members of Mr and Mrs Penny visiting the property. Guests could be invited onto the property (but Mr and Mrs Penny were responsible for them) and the special condition 4.2 provided only that if other family members were to "stay" in the property, then this "could" result in Centrecare asking for vacant possession immediately.
As we understand the evidence, the particular circumstances as they prevailed at the time the requirements were imposed can be summarised as follows:
(a)Mr and Mrs Penny were essentially homeless at the time they were offered the property. The Department would not house them at the time because of a poor tenancy history and they had no dependants reliant on them that might justify them being given any priority.
(b)Mrs Penny was well aware of the issue regarding dependants and understood that Centrecare could not house them because they did not have dependants.
(c)Nevertheless, the Department and Centrecare were prepared to make special provision for Mr and Mrs Penny, even though to do so was not part of Centrecare's usual housing programs. The special provision could be made because of the availability of a certain type of accommodation for elderly persons without dependants ‑ namely, a unit in a small complex expressly intended for occupancy by elderly, retired Aboriginal people.
(d)Further to point (b) above, Mrs Penny understood at the time the property was offered to them that it was to be occupied only by her and her husband and that no others could be allowed to stay for any length of time. Although she said in evidence that she worried about this aspect, she accepted the tenancy on the basis of that limitation, and maintained that she had often told members of the family that they could not stay because of the two‑person limit.
(e)The tenancy agreement was a standard form used by Centrecare, and apart from cl 4.2, contained unexceptional terms and conditions. Clause 4.2 was the only one specially included and, in effect, reinforced the special nature of the complex, the importance of limiting the occupants of the property to Mr and Mrs Penny, and the possible consequences of not doing so.
We consider that the nature of the complex within which the property was located is of great importance in considering the reasonableness of the two‑person limit. We accept the evidence that it was for elderly persons who could be expected to want a quiet environment. The evidence (which we accept) that at least some of the complaints later made about antisocial behaviour at the property came from other Aboriginal occupants of the complex support that view.
Similarly, in balancing the reasons justifying the inclusion of the "two person" requirement against the inconvenience or harm to Mrs Penny that could flow from such a requirement, we think it very important that Mrs Penny was well aware of the importance of and reasons for such a requirement ‑ and, despite her reservations about it, accepted the tenancy on terms that would prevent her having family members live at the property but did not exclude short‑term visits.
In the light of all the above circumstances, we consider that Mrs Penny has not shown that the inclusion of the terms and conditions in question in the tenancy agreement was unreasonable. Further, we consider that the terms were, in fact, reasonable in all the circumstances. However, we would go further and say that the terms and conditions were subsequently administered and managed by Centrecare in a very reasonable way. It is apparent that problems arose from an early stage but, although Centrecare issued notices of breach to draw attention to those problems in an attempt to have them rectified, in fact, Centrecare was very patient in trying to work through the problems. The documents refer to many visits to the property by Centrecare staff to try to assist Mr and Mrs Penny, and the eviction proceedings were not undertaken until after the tenancy agreement had expired at the end of December 2004. Even after obtaining court orders, the actual eviction did not occur until considerably later and only after Centrecare had tried to find alternative accommodation for the children concerned. We accept the evidence that, in the end, the eviction proceedings were primarily the consequence of the long history of antisocial behaviour rather than the fact that at times more than two people occupied the property.
We do not accept the contention that Centrecare merely assumed that all the antisocial behaviour complained about was coming from the property because it was overcrowded. Although it is true that some of the complaints set out in Ms Stronnen's witness statement (Exhibit R20) refer to behaviour in the street near the complex, which might not have necessarily involved persons staying at the property, it is also the case (and we accept) that many of the complaints referred to are based on the observations of Centrecare staff members or the persons making the complaints ‑ and are specifically identified as involving persons at the property. In the circumstances, we consider that Centrecare was well justified in giving the notices of breach of agreement that it did (based on more that two occupants and based on antisocial behaviour); in determining not to renew the tenancy when it expired at the end of December 2004; and in obtaining orders for possession and then effecting the eviction.
For these reasons, we conclude that there has been no indirect discrimination by Centrecare against Mrs Penny, either in relation to the terms and conditions on which accommodation was offered to Mr and Mrs Penny (for the purposes of s 47(1)(b) of the EO Act), or in relation to evicting them from the property (for the purposes of s 47(2)(b) of the EO Act).
Having made those findings, it is unnecessary for us to determine the point raised by Mr Curlewis as to the applicability of s 47(3)(b) of the EO Act.
Conclusion and orders
For the reasons set out above, Mrs Penny has failed to show that Centrecare relevantly discriminated against her under the EO Act and the Tribunal orders as follows:
1.The complaint of Kathleen Penny against Centrecare Inc made to the Commissioner for Equal Opportunity under the Equal Opportunity Act 1984 (WA) on 27 July 2005 and referred to the State Administrative Tribunal on 23 January 2007, and the proceedings in the State Administrative Tribunal, are dismissed.
I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER
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