Discrimination law allows a few named exceptions, such as choosing, within limits, who will live in their own home, and each is narrow. Outside them, an owner and an agent who carries out a discriminatory instruction can both be held responsible, and a complaint can go to the state’s commission or to the Australian Human Rights Commission.
General informationAbout exceptions, responsibility and complaints under anti-discrimination law, not legal advice about any complaint. The official pages are the Victorian Equal Opportunity and Human Rights Commission, the Queensland Human Rights Commission, Equal Opportunity SA, the WA Equal Opportunity Commission’s complaint page and the Australian Human Rights Commission.
The exceptions, state by state
Queensland’s commission says exemptions apply only in limited situations, and only where they are reasonable.
- Queensland
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Someone choosing who will live in their own home may discriminate on any protected attribute, as long as they rent to no more than three people. Other examples the commission gives: accommodation set aside for the sole benefit of a protected group, such as people with an impairment; charities, on sex, relationship status or age, where that fits the purpose the accommodation was set up for; schools housing students of one sex or religion, or with a disability; and religious bodies acting in line with their doctrine.
- South Australia
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Equal Opportunity SA lists three situations where the law does not apply: a private household, where someone is deciding who lives under the same roof; accommodation that charities or welfare providers keep for a particular group, such as aged care or respite for single mothers; and accommodation an educational authority keeps for students of a particular sex, age or race, or students with disabilities.
- Victoria
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The Equal Opportunity Act has exceptions too; the commission’s example is a real risk to someone’s health, safety or property. An accommodation provider may also apply to VCAT for an exemption.
- Commonwealth
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The Age and Disability Discrimination Acts each say that treating someone differently is lawful in some circumstances, known as exemptions or exceptions. The Age Discrimination Act also allows a genuine benefit for people of a particular age group.
Consumer Affairs Victoria names one thing that is not unlawful discrimination: a person who has never rented may find it harder to be chosen.
When the agent and the owner share it
Queensland’s commission says agents must not act on discriminatory instructions from owners; if an owner tells agents not to rent to people of a particular race and they do as told, both can be liable. An accommodation provider can also be held responsible for discrimination, sexual harassment and vilification by its own agents or staff.
Equal Opportunity SA gives anyone acting for a landlord the same advice it gives the landlord, and warns that both could be held liable. In Victoria, the person who discriminates is primarily responsible, but in some cases the accommodation provider can also answer for its staff or agents. Victorian landlords also carry a positive duty: to act to prevent discrimination, sexual harassment and victimisation, and to stamp them out as far as they can.
The advertisement
Discrimination can begin before anyone applies. In Queensland, agents and lessors must make sure accommodation advertisements are not discriminatory, and the commission’s suggested way to do it is to describe the property rather than the person wanted, as in the sheet at the top of this page. Equal Opportunity SA asks landlords to check every advertisement for any sign of an intention to discriminate.
Harassment and victimisation
Sexual harassment is against the law in renting in each of the three states with detailed guidance, and under the Commonwealth’s Sex Discrimination Act. In South Australia that runs both ways: a landlord or agent must not harass a tenant or applicant, and an applicant must not harass them. In Victoria it is also unlawful to victimise someone, which means treating them badly, because they complained about discrimination, harassment or vilification, or helped someone else complain.
Where a complaint goes
| Where | Body | What the body’s page says |
|---|---|---|
| Victoria | Victorian Equal Opportunity and Human Rights Commission, or VCAT | Someone who missed out on a property, or was asked to leave, and believes it was discrimination can contact the commission, or apply to VCAT for compensation for their loss. Someone else can make the complaint for them if they wish. |
| Queensland | Queensland Human Rights Commission | Takes complaints from anyone who believes they met discrimination in housing or accommodation. |
| South Australia | Office of the Commissioner for Equal Opportunity | SA.GOV.AU points there for more information on discrimination in choosing a tenant. |
| Western Australia | Equal Opportunity Commission | The person who experienced it lodges the complaint in writing (a parent or guardian may lodge for a child, and someone else may lodge for a person whose disability prevents them), in any language, and the person complaining must provide the evidence; the incidents must be within the 12 months before it is lodged, unless the Commissioner finds good reason to include older ones. |
| Anywhere in Australia | Australian Human Rights Commission | Complaints are free and can be made in any language. The events must be reasonably arguable as unlawful discrimination, with enough detail of what happened, when, where and who was involved. The commission can investigate and try conciliation, but it is not a court and cannot decide that discrimination happened. |
Queensland’s commission adds one practical note for providers: telling unsuccessful applicants why they missed out helps avoid complaints.