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Guide 03 · Discrimination law

Discrimination law and rental applications

A landlord may choose the tenant they think suits the property best. What they may not do is decide on who the applicant is, such as their age, race, disability or sex.

Proof of identity
May ask
Ability to pay the rent
May ask
Marital status
Generally unlawful
Plans to have children
Generally unlawful
Religious or political beliefs
Generally unlawful
Drawn from the Queensland Human Rights Commission’s answer on which personal details may be asked for.

In Victoria, Queensland and South Australia, a landlord or agent may choose between applicants but may not refuse one because of a personal characteristic the state’s law protects; in Western Australia, every applicant must be treated equally and fairly. Four Commonwealth Acts reach renting as well: those on sex, disability, age and race.

General informationAbout anti-discrimination law as it applies to choosing a tenant, not legal advice about any decision. The official pages are the Victorian Equal Opportunity and Human Rights Commission, the Queensland Human Rights Commission, Equal Opportunity SA, Consumer Protection WA and the Australian Human Rights Commission.

What a choice may rest on

Every state starts from the same place: the landlord chooses. Consumer Affairs Victoria says a rental provider can weigh things such as an applicant’s rental history and ability to pay, but it is against the law to refuse someone because of characteristics including age, disability, race or religion. Queensland’s commission puts it as a right to select tenants on reasonable factors, such as the ability to pay rent, so long as the choice is not discriminatory.

Equal Opportunity SA suggests a landlord settle the criteria first, and focus them on factors such as an applicant’s ability to pay the rent, keep the property in good order and follow ordinary tenancy conditions, such as not disturbing the neighbours. It also asks that every application for a property be handled the same way against the same criteria, and that any staff who rent the property out know those policies.

Who each state protects

Protected characteristics in rentingAs listed by each state’s regulator or commission. Victoria’s and Queensland’s lists are partial; follow the links for the full ones.
StateThe lawCharacteristics named
VictoriaEqual Opportunity Act 2010 Age; carer, parental status and family responsibilities; disability; employment; gender identity, lawful sexual activity and sexual orientation; marital status; physical features; pregnancy and breastfeeding; profession, trade or occupation, sex work included; race, including colour, ethnicity, ethnic origin and nationality; religious belief or activity; sex. The commission keeps the full list.
QueenslandAnti-Discrimination Act 1991 Examples given include age, sex, race, impairment, religion, pregnancy, parental status and sexuality.
South AustraliaEqual Opportunity Act 1984 Sex, age, race and pregnancy; disability; sexual orientation, gender identity and intersex status; marital or domestic partnership status, and a spouse’s or partner’s identity; caring responsibilities and association with a child; and having experienced domestic abuse.
Western AustraliaEqual Opportunity Act 1984 (WA), the Act the Equal Opportunity Commission’s complaint page names Consumer Protection WA says only that a landlord must treat applicants equally and fairly, and points to the Equal Opportunity Commission for more.

The law reaches past the yes or no. In Queensland it covers eligibility criteria, references, conditions, rent and bonds, among other parts of a tenancy. Equal Opportunity SA lists processing one application differently from others for the same property, and offering worse terms, such as a higher bond, among the decisions that cannot turn on a personal characteristic. Queensland’s commission gives a plain instance: charging a higher bond or rent because a tenant has children is unlawful discrimination.

The questions that follow

Protection at the decision means caution at the question. The three states with detailed guidance handle it differently.

  1. Victoria: a written reason and a statement. If a rental provider asks about any protected characteristic, they must say in writing why they need it. Every applicant must also get a statement of information about unlawful discrimination with the application, given on the prescribed form.

  2. Queensland: generally off the form. Proof of identity and of the ability to pay and look after the property may be asked for, but agents and other accommodation providers are expected to avoid unnecessary questions that could be used to discriminate. The commission says that, as a rule, questions about marital status, sex, age, the number of children or plans to have them, race or nationality, sexual preference, health or medical history, and religious or political beliefs are against the law on forms and in interviews.

  3. South Australia: only when strictly needed. Equal Opportunity SA advises against asking about the protected characteristics at all unless it is strictly necessary.

Children

Children get their own rules in two states. In Victoria a rental provider or agent generally cannot refuse someone because a child aged under 16 will live with them. The two exceptions are where the property is the rental provider’s own main home, or where its location or design makes it unsuitable for children. Someone told a property is unsuitable who disagrees can ask the Victorian Civil and Administrative Tribunal (VCAT) to decide.

In South Australia, association with a child is a protected characteristic, and a form may not ask whether a child will live at the property unless the landlord or agent lives there too.

The Commonwealth Acts

Alongside each state’s law, four federal Acts each list renting or buying a home among the areas they cover.

Sex

The Sex Discrimination Act 1984 covers sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, pregnancy or possible pregnancy, and breastfeeding.

Disability

The Disability Discrimination Act 1992 protects people with a disability, including a past or future disability, or one others assume they have.

Age

The Age Discrimination Act 2004 protects people of every age, young and old.

Race

The Racial Discrimination Act 1975 covers race, colour, descent, national or ethnic origin and immigrant status.

Each Act reaches indirect discrimination too: a rule applied to everyone alike that falls unfairly on people of one sex, age, race or disability. Queensland’s commission applies the same idea to references, as the documents guide sets out. When the law allows a choice anyway, and where to complain, is in exceptions, agents and complaints.