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Editors --- "Finding a Place - Report of the Inquiry into the Existence of Discriminatory Practices in Relation to the Provisions of Public Housing and Related Services to Aboriginal People in Western Australia - Digest" [2005] AUIndigLawRpr 14; (2005) 9(1) Australian Indigenous Law Reporter 85

Inquiries and Reports - Australia

Finding a Place

Report of the Inquiry into the Existence of Discriminatory Practices in Relation to the Provisions of Public Housing and Related Services to Aboriginal People in Western Australia

Summary

Equal Opportunity Commission, Western Australia

December 2004

An inquiry into the existence of discriminatory practices in relation to the provision of public housing and related services to Aboriginal people in Western Australia.

Introduction

This Inquiry aimed to examine the possibility of indirect discrimination in the provision of public housing to Aboriginal people by Homeswest, the rental accommodation division of the Western Australian Department of Housing and Works (‘DHW’), and to disclose the far-reaching consequences of such discrimination.

The Inquiry recognised that there are two types of discrimination, direct and indirect. While both are evident in society, and have the capacity to irrevocably damage a person’s self worth and everyday existence, the practices and procedures of organisations, and unconscious behaviours of individuals, may be permeated by indirect discrimination. Such systemic discrimination, while unintentional, can seriously damage the life experiences of individuals.

Homeswest was recognised as the housing provider of last resort in Western Australia, serving those most in need. The Inquiry gave careful consideration to the experiences of Aboriginal people accessing the services provided by Homeswest. The Inquiry proposed that if disadvantage through indirect discrimination was perceived as likely to have occurred then purposeful action needed to be undertaken to alter the policies and practices involved to ensure that the future experiences of those Aboriginal people in need are enriching and unequivocally improve the quality of their lives.

The Legal Framework

The Commissioner for the EOC is appointed to administer the Equal Opportunity Act 1984 (WA) (‘EOA’).

The purposes of the EOA are detailed in s 3:

to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs.

In September 2002, Moira Rayner (then Acting Commissioner) established the Investigation into the Provision of Public Housing to Aboriginal and Torres Strait Islander people in Western Australia. In accordance with ss 80 and 82 of the EOA, the Inquiry aimed to assess whether the policies, programs, practices, guidelines or decision-making processes within Homeswest contribute to direct or indirect discriminatory treatment of Aboriginal people in the provision of public housing and related services due to race or for any other reason.

The impetus for the Inquiry was the historically high number of complaints against Homeswest by Aboriginal people (the majority from women) on the grounds of race and impairment. As these complaints are often resolved informally, the issue of alleged systemic discrimination remains unresolved. It is partly for this reason that further complaints on similar grounds have been repeatedly brought to the attention of the Commissioner.

In the year ending 30 June 2002, the Commissioner received 634 complaints from Aboriginal people. Of these, 237 complaints (37% of all those received) were lodged against Homeswest. These complaints covered the grounds of impairment, marital status, sex and race in the areas of accommodation and the provision of goods, services and facilities. Furthermore, of these, 210 complaints (88%) against Homeswest were lodged by women. However, a significant number of complaints brought to the EOC by Aboriginal people lapse, indicating that the formal process of conciliation does not necessarily produce an outcome for this group.

The consistently high number of complaints received, the concerns regarding the integrity of the process for Aboriginal complainants, and the results of previous enquiries into public housing and Aboriginal people led to the commencement of an Inquiry into the provision of public housing by Homeswest for Aboriginal people in September 2002, in accordance with ss 80 and 82 of the EOA.

The Terms of Reference and Reference Group

The EOC was mindful of the sensitivities that exist in relation to the provision of public housing to Aboriginal people, and sought to ensure that stakeholders were confident about the integrity of the process. To achieve this, the Terms of Reference resulted from wide consultation and a community-based Reference Group was formed to oversee the process of the Inquiry.

The Conduct of the Inquiry

The Inquiry gathered submissions from Aboriginal people who were either prospective, current or past Homeswest tenants. Submissions were also taken from individuals and organisations involved in the provision of public housing to Aboriginal people and members of the general community.

To maximise consultation opportunities for Aboriginal people and others who wished to make a submission, EOC officers worked with Aboriginal organisations and networks throughout metropolitan Perth and regional Western Australia in the Great Southern, Southwest, Goldfields, Midwest, Pilbara and the Kimberley.

Throughout the Inquiry there was an awareness that it was important to take into consideration gathering of submissions in a culturally appropriate manner.

Submissions were received in a variety of formats including written submissions, verbatim note taking, and tape recordings and video taping. These options were explained to people prior to the taking of the submissions and consent regarding the level of confidentiality of the submission was sought. Translating and interpreting services were also used where needed.

The Report

In recognising the importance of relaying the findings to those who made submissions to the Inquiry in an accessible manner, a video tape has also been made to be viewed in conjunction with the written report.

Section One provides an overview of the procedures and people involved in the development of this Inquiry, specifically commenting on the development of the Terms of Reference and outlining the methodology utilised in the Inquiry. The recommendations arising from the Inquiry are also detailed in this Section.

Section Two explores the State, National and International legal context that forms the structural framework underpinning this Inquiry. The treaties relating to the human right to adequate housing and legislation outlawing discrimination are addressed. It also examines the legal definition of direct and indirect discrimination, four relevant discrimination cases, and an international comparison:

Although indirect discrimination can be more difficult to grasp conceptually, it can reveal well camouflaged and considerably far-reaching discriminatory acts, including systemic, policy-based and management-led practices, which are supported by the highest levels of government and business ... indirect discrimination may continue undetected in the workplace, in education and in the provision of housing for years ... in the form of an apparently neutral policy or procedure [and] can adversely impact hundreds of people simultaneously (See Section Two – Indirect Discrimination).

Section Three discusses the historical periods that relate to housing for Aboriginal people in Western Australia, and the important development of Homeswest, within the DHW, and its policies and practices. A literature review summarises the main policies and procedures influencing the provision of housing for Aboriginal people by Homeswest. These elements provide the social foundation upon which this Inquiry is based and aims to contribute to.

Section Four presents a quantitative analysis of the premise that the public housing provided by Homeswest, within the DHW, serves those groups of people most in need, whether Aboriginal or non-Aboriginal. Four main indicators – overcrowding, housing affordability, children living in poverty and accessibility to services – were assessed. This study presents a statistical and graphical analysis of public housing and in conclusion contends that Aboriginal people experience disproportionate disadvantage in terms of the four indicators.

Section Five delineates the methodology informing the conduct of this Inquiry through a qualitative study, specifically addressing the documents and processes involved in the collation of oral, written and video recorded individual and group submissions from Aboriginal people and advocates pertaining to the experiences of Aboriginal access to housing through Homeswest services.

A number of themes that emerged from the submissions are collated and examples of the experiences of Aboriginal people throughout regional and metropolitan Western Australia are used to illustrate the reality of disadvantage and less favourable treatment.

The video accompanying this Inquiry further illustrates the personal issues, experiences and environments that many Aboriginal people face in everyday life as a direct result of public housing and service that is provided to them by Homeswest.

A Summary of Some Main Issues Identified in Submissions

• Current discrimination law in Western Australia is unlikely to lead to a conclusive finding that unlawful indirect race discrimination has or is occurring in the provision of public housing, because the onus of proof is on the complainant and the data and information required to show indirect discrimination are often held with the respondent. (Section 2)

• Lower levels of literacy among some Aboriginal tenants due to historical, social and economic factors impacts on their ability to comprehend correspondence, letters and forms which in turn affects their ability to respond to situations which might impact on their right to adequate housing.

There is little recognition of the fact that, due to historical factors, the level of literacy among Aboriginal people is generally low. A letter may only be partially understood or even totally misconstrued. Along with that goes a degree of humiliation at having to ask a Homeswest Officer to read and explain the letter’s content. Complexity in forms can also create difficulties and uncertainties for clients (written submission 43, May 15 2003: 7).

• According to Homeswest data, Aboriginal people are over-represented in the proportion of people evicted from tenancies and the proportion of people with alleged rent and debt arrears which in turn impacts on their ability to receive public housing assistance.

My niece has seven kids; she’s on a disability pension. She can’t have surgery because she hasn’t got a home. She has a debt and she’s been paying for it. They said if she paid half they’d house her. She paid it off but they still won’t house her. (written submission 12, February 28,2003: 1).

• Aboriginal people, more than non Aboriginal people, are more likely to be considered by the public housing authority to have a debt and poor tenancy history (often disputed) and therefore have restrictions placed on them in terms of access to housing the type of housing assistance required.

The problem with many Aboriginal people with a ‘tarnished history’ with DHW is they are left with few options to access any accommodation. Although some Aboriginal people do occupy private rental accommodation there is a significant amount of discrimination and public housing is the fallback position and last resort (written submission 29, May 30 2003: 4).

• Aboriginal families, which are often larger than non-Aboriginal families, are unable to access suitably sized accommodation and therefore may wait longer for assistance. They have to access temporary accommodation or stay with relatives or friends in overcrowded conditions.

Homeswest especially down here do not make houses adequate enough for what Indigenous families are about. They give you a three bedroom house and say only mum, dad and two children are to be here. They don’t realise the rest of your family is mothers uncle, cousin, you know. And no way are you going to shut the door

on any of your relations to come and stay (confidential submission 89, female, tenant, Southwest).

• Decisions to allocate public housing are not necessarily made free from discrimination and are influenced by assumptions about a person’s race, age, gender etc, as well as supposed living standards.

These claims were supported by a number of Aboriginal people across regions who perceive that assessment for properties is influenced by their Aboriginality combined with assumptions about supposed living standards. An Aboriginal woman stated that ‘Homeswest treat Aboriginal people a lot different. Very different to non Aboriginal. The house they gave me and my mum in Midvale was on the demolishment list’ (written submission 10 February 18, 2003: 7).

• Aboriginal people are more likely than non Aboriginal people to be allocated poor standard housing in particular metropolitan suburbs and areas of country towns. This housing stock is recycled from generation to generation creating intergenerational poverty and hardship.

Trends indicate that Aboriginal people are being housed in specific areas such as Langford, Queen’s Park and Mirrabooka. Apart from issues of feuding and the reduced options to make life choices about areas of residence and life style there is concern that this practice creates ‘ghettos’ and segregates Aboriginal people from mainstream community participation. Housing in these areas is often substandard, poorly maintained and earmarked for future redevelopment. This has historically led to the creation of a ‘ghetto’ in the town (written submission 46, May 30 2003: 7).

• Aboriginal people with critical housing needs are unable to have these met by the public housing authority which is impacting on their physical and mental health and increases the potential for sexual abuse, domestic violence and poor education outcomes.

• Aboriginal people who are homeless with critical housing needs are required to have evidence that they have no other option but to access public housing including – staying with family or friends in already overcrowded conditions is accepted as a viable housing option.

The Homeswest definition of homelessness includes ‘residing in a refuge or place designated as temporary shelter.’ Many Aboriginal people who apply for priority housing are usually camping out at relatives place for what they believe will be a short period time before they get housing. These places are overcrowded because other people are doing the same. This is considered temporary shelter in the applicant’s eyes but Homeswest consider this a viable option. It is not a viable option when there are twenty people sharing a house with only two bedrooms and one bathroom (confidential written submission 40, May 30 2003: 4).

• Aboriginal people experience long delays and a poor standard of maintenance on properties placing them at risk of electrocution, disease, poor security, sexual abuse and domestic violence.

Mrs L is an elderly Aboriginal woman. Her kitchen is old and dilapidated. At her last inspection she asked if it could be fixed up. The Accommodation Manager told her that if she paid her account he would see what he could do. Mrs L paid her account but the Accommodation Manager was not provided with sufficient capital works funds in the last budget round to carry out the upgrade and it is unlikely to be approved in the foreseeable future (written submission 44 May 30 2003: 40).

• Victims of violence are required to report the incidents to the police and the public housing authority. Failure to do so renders them liable for any damage to property caused by the perpetrator. Women and children face eviction and homelessness as a result of this policy.

Key Recommendations

The complete 165 recommendations can be found in Chapter Two of the Report.

Recommendation 1

A broadly-based Implementation and Monitoring Group be established and dequately funded.

The Group’s first priority would be to produce a program for the implementation, monitoring and review of recommendations contained within the report, with a workable program to be produced.

Recommendation 20

Homeswest to hold face to face meetings with Aboriginal tenants whenever there could be a potentially serious outcome, such as the removal of a client from a waiting list or possible eviction.

Recommendation 41

Living with family or friends should not be seen as a viable housing option, and should not stop the client/s being eligible for priority housing.

Recommendations 24, 37 and 150

More housing stock should be allocated for emergency housing in line with the findings of the Gordon Inquiry.

This increased housing stock should include a range of accommodation options to satisfy different family structures such as accommodation suitable for singles, couples, families with children, extended families, elderly people and people with disabilities.

Recommendation 112

Living in a refuge to escape domestic violence should be accepted as a prima facie reason for placement in priority housing, regardless of that client’s prior tenancy history or any housing-related debts.

The full report is available online at <http://www.eoc.wa.gov.au/housing> .