Rosales-Castaneda, Jeffrey --- "Flogging A Moribund Horse While The Emperor Is Naked: Issues In Proving Institutional Racial Discrimination In State Housing In Western Australia" [2003] MurdochUeJlLaw 37; (2003) 10(4) Murdoch University Electronic Journal of Law

No matter how thin you slice the truth, there are always two sides to it.
Anonymous (but likely to have been a lawyer)

Some Noongahs have low self esteem, you know, being put down by people who are meant to be service providers, and they keep putting these people down, you know and they're more or less saying." "Well you're the little person. I'm the top person. I've got all the say and I've got all the authority." Well it's knocking them even more. So naturally they're not going to walk in a meeting and they're not going to walk into that office and say, "Well look I've got a problem, would you please help me?" "Because already that person has done a good job of putting them down and "You stay there, that's where you belong." And that's what happens in [town name deleted] a service provider, but who do they provide for?
Anonymous Noongah Woman in Western Australia

The other side of the story, that is never represented in enquiries of this nature, is the extensive criticism the Department receives about the way it treats its Aboriginal clients. The Department gets thoroughly criticized for being too lenient on Aboriginal tenancies, for being unfair to non-Aboriginal people in the allocation of scarce resources.... There is just as much criticism of the Department being too soft as there is of it being too hard. And of course everyone thinks they are right.... Much of the publicity and media attention given to the Department's dealings with Aboriginal people highlight the negative issues of rental arrears, poor property standards and antisocial behaviour. However, this does not recognise the fact that the majority of the Department's Aboriginal tenants does maintain successful tenancies and do contribute positively to their local communities.
Extracts from Homeswest's Submissions to S80 Inquiry, 2003

Both the title and the opening quotations in this paper have a controversial tone. That was deliberate. The issue of racial discrimination against Aboriginal people in Western Australia, particularly in the area of accommodation as provided by the State Housing Commission remains controversial after three major cases before the Equal Opportunity Tribunal in Western Australia.

The converted and "true believers" advocating for the advancement of equality for Aboriginal people argue that there is an endemic pattern of racial discrimination by Homeswest against Indigenous Western Australians. On this side of the fence, community organizations and affected individuals are ready to throw in facts, figures and anecdotal stories that support that view, and in their hearts and minds, their view is almost proven "beyond reasonable doubt".

On the other hand, Homeswest and "conservative" and "mid-stream" parts of the community insist that Aboriginal people get more than equal and fair treatment. They argue that any difficulties some Aboriginal tenants face are due to what they call "anti-social behaviour", and that the actions Homeswest takes against "troublesome" tenants are "reasonable" in all circumstances.

Both sides of this important issue seem to be clouded by the imminence of a legal victory carrying the potential for vindication, acquittal or compensation as the case may be. Both sides seem to ignore each other's arguments and, in the end, the housing situation for Aboriginal people continues deteriorating with no hope for improvement. A solution has to be found. But an analysis of the latest of three cases against Homeswest suggests that such a solution is unlikely to be found through litigation. That horse is moribund.

This paper highlights the barriers that impede arriving to a solution by using the Western Australian Equal Opportunity Legal Forum, and suggests that "housing reconciliation" can only be achieved by both sides acknowledging the issues that each side ignore in their struggle to defend their positions. Admitting that "the emperor has no clothes on" is, in my view, the first step towards achieving "housing reconciliation".

Our legal institutions work on the underlying assumption that the system works. This one-size-fits-all approach must be challenged. But questioning the functionality and adequacy of the legal system meets resistance. When hundreds of Aboriginal tenants lodge hundreds of complaints against Homeswest over several years, and from those hundreds only three cases end up being heard by the Tribunal, when in the history of the Act, of these three cases, only one has been successful, and when the one that has been successful only gets a shallow remedy, something is telling me that the system is not working for everyone, and that the "one-size-fits-all" approach is not achieving the Act's ultimate goal: the elimination of unlawful discrimination.

Institutional Racism: The collective failure of an organization to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage Black and Minority ethnic people.

The Stephen Lawrence Enquiry, Implications for Racial Equality, Commission for Racial Equality, UK: March 1999. Homeswest and Aboriginal Housing 101

Western Australia provides public housing through the State Housing Commission: a statutory body created by the Housing Act 1987, and it operates through the Department of Housing and Works, trading as Homeswest. Homeswest receives funding for Aboriginal housing from the Commonwealth State Housing Agreement,[1] and from Aboriginal Housing grant funds. Homeswest has 38,872 dwellings, of which 2,509 are set aside as Aboriginal Housing properties.[2] Homeswest allocates properties on the basis of need and income, requiring tenants to pay not more than 25% of their income in rent.[3]

Aboriginal families occupy approximately 18% of Homeswest's housing stock, and go through a greater number of tenancies than non-Aboriginal tenants.[4] To understand the nature of the problem of public housing for Aboriginal people in Western Australia, it is also necessary to juxtapose this short background in public housing statistics against the widely recognised systemic factors Aboriginal people face in their everyday life in Western Australia:

• High levels of unemployment;
• Significantly low level of education;
• Low life expectancy compared to that of non-Aboriginal people;
• Overrepresentation in the prison system;
• Domestic and family violence;
• Family feuding;
• Substance dependency;
• Ongoing financial crisis;
• Discrimination in the private rental market;
• High incidence of tenancy problems such as rental arrears, "anti-social behaviour", poor property standards and increased property damage; and
• High incidence of eviction notices.[5]

Interestingly, Homeswest also admits that:

• Arrears for Aboriginal tenants are 7 times higher than for non-Aboriginal tenants;
• The rate of eviction for Aboriginal families is 3 times higher than for non-Aboriginal tenants on a per capita basis;
• Homeswest spends twice as much money in maintaining properties tenanted by Aboriginal families as that spent on properties occupied by non-Aboriginal families;
• Vacated debts for Aboriginal tenants are 5 times higher than non-Aboriginal tenants; and
• Tenant liability charges for Aboriginal families are 4 times higher than those for non-Aboriginal tenants.[6]

Between 1996 and 2003 (to date), the Western Australian Equal Opportunity Commission has received over 400 complaints by Aboriginal tenants against Homeswest, alleging that Homeswest has directly and/or indirectly discriminated against them on the basis of their race. Out of these 400 plus complaints, only 3 have gone before the Equal Opportunity Tribunal [7] for determination. The first case was that of Martin v State Housing Commission.[8] The second case was Walley v State Housing Commission,[9] and the third was the Penny v State Housing Commission case.[10]

The Martin Case

Mrs Martin, a woman of Aboriginal descent, was a tenant of a Homeswest property. She had a history of medical problems. Homeswest evicted her from the property alleging that the house was overcrowded with 16 relatives, who engaged in acts of nuisance and anti-social behaviour and rent arrears. Mrs Martin claimed that she had a cultural obligation to provide shelter to homeless relatives, and that Homeswest directly and indirectly discriminated against her by evicting her because of her cultural obligations.

The Tribunal dismissed the complaint and held that Homeswest had acted reasonably in evicting Mrs Martin after a long history of tenancy problems, transfers to other Homeswest properties, and complaints by other neighbours that the Martin family engaged in "anti-social behaviour". Further, the Tribunal held that the eviction was the result of Mrs Martin breaching her tenancy agreement, and not because of her race. The Tribunal also found that "all tenants, Aboriginal and non-Aboriginal alike, must endeavour to live in harmony with their neighbours in a way that does not give rise to nuisance and complaints", and that Mrs Martin's householders did not comply with this tenant obligation.

The matter went on appeal to one judge of the Supreme Court of Westerm Australia, and Wallwork J upheld the appeal after finding that the Tribunal erred in law in reaching its decision, and awarded damages of $20,000.00. Homeswest appealed to the Full Bench of the Supreme Court of Western Australia, and was successful in overturning Wallwork J's decision, and dismissing the complaint.

Mrs Martin tried to take her matter to the High Court of Australia, but was denied leave to appeal. At the end of a long and traumatic legal battle, Homeswest evicted Mrs Martin and her family.

The Walley Case

In Walley v State Housing Commission, Mrs Walley, a woman of Aboriginal descent, claimed that Homeswest had discriminated against her on the grounds of her race both directly and indirectly, by requiring her to enter into a fixed term tenancy agreement subject to several conditions.

Mrs Walley asserted that the conditions imposed on her tenancy constituted less favourable treatment than a non-Aboriginal person would be subjected to. She also argued that, by evicting her from her dwelling, Homeswest indirectly discriminated against her by requiring her to find private accommodation, which was a condition she could not comply with, and which a higher proportion of non-Aboriginal people could comply.

The Tribunal dismissed most of her claims, but also held that whilst "the respondent was justified in entering into a fixed term tenancy with the complainant because she and members of her household were responsible for various acts of nuisance and anti-social behaviour... the respondent's decisions not to renew the tenancy on the basis that a member of the complainant's household was charged with a criminal offence was found to be discriminatory."[11]

However, given that most of Mrs Walley's allegations against Homeswest were found to be unsubstantiated - and that the respondent had acted reasonably in all circumstances - the Tribunal was not prepared to award damages and, instead, ordered that the fixed term tenancy be reinstated for a fixed term.

The Penny Case

Against this background of one short-lived and overturned legal victory, and a case involving a shallow win before the Tribunal, Mrs Penny lodged a complaint against Homeswest arising out of her own personal circumstances. The Commission investigated the complaint and dismissed it, giving Mrs Penny the option of having it referred to the Tribunal if she wished to present her case without the Commission's assistance. She chose this option, and the matter was referred pursuant to Section 90 of the Act. TAS[12] represented her before the Tribunal.

Mrs Kathleen Penny, an Aboriginal woman, had been a tenant of Homeswest for a long time at over 11 properties. She performed an important role in raising and caring for her extended family, and in providing accommodation for young homeless Aboriginal people. This brought some difficulties in her past tenancies due to overcrowding and allegations by neighbours of anti-social behaviour.

In 1992, Homeswest and Mrs Penny entered into an agreement where her obligations as an Aboriginal matriarch were acknowledged by the landlord, but obliged her to notify all relevant agencies that her house was no longer available as crisis accommodation for homeless Aboriginal people.

The 1992 agreement also included a term binding Mrs Penny to acknowledge that she was legally responsible for the behaviour of residents and visitors on the property, and that she would endeavour to prevent any nuisance to her neighbours.

In 1996, Homeswest issued a Notice of Breach of Agreement under the Residential Tenancies Act 1987, alleging that she had failed to pay water consumption charges and repairs, keep the premises in a reasonable state of cleanliness; and allow inspection of the premises by the owner.

In the meantime, Mrs Penny had requested a transfer to another Homeswest property. Homeswest declined the application, and Mrs Penny lodged a complaint with Equal Opportunity Commission alleging that Homeswest had discriminated against her on the grounds of her race by refusing her application for transfer. Homeswest obtained an eviction order from the Court of Petty Sessions, and Mrs Penny applied for an interim order from the Tribunal preventing Homeswest from acting on the eviction order.

The Tribunal dismissed Mrs Penny's application, and Homeswest evicted her. She moved into her granddaughter's house, which Homeswest had provided to Ms Penny a couple of weeks before, and remained there until Homeswest re-housed her somewhere else. The re-housing was conditional on Mrs Penny paying off her debt to Homeswest by making installment payments of $100.00 per fortnight by direct debit. The debt amounted to $7,321.70.

Homeswest advised her that she was entitled to appeal the decision in respect of the debt amount, and enclosed an appeal form. She had 12 months to appeal.

The Tenant's Advice Service ("TAS") assisted Mrs Penny in requesting further information in relation to the components of the debt, and sought an extension of time to allow them to process the appeal after receiving the requested information. Homeswest advised TAS that they could not disclose the information without Mrs Penny's consent in writing, and that Mrs Penny could appeal any of the charges by simply completing the appeal form.

TAS insisted on requiring the information from Homeswest, and argued that Mrs Penny needed it to determine what exactly was to be appealed. Homeswest, in turn, advised that it was unable to provide the information, as Mrs Penny's file was with the State Ombudsman for enquiries.

In the meantime, Homeswest advised Mrs Penny that they were looking for another property for her, but that the transfer would be conditional upon:

• Mrs Penny continuing to pay her debt to Homeswest;
• Mrs Penny's tenancy to be pursuant to a head lease with an Aboriginal Corporation; and
• That the property would be "specifically selected to ensure minimum impact on neighbours."

Eventually, Homeswest provided documents itemizing the components of Mrs Penny's vacated debt, but TAS contacted Homeswest advising that Mrs Penny needed more time to file the appeal, as she was still waiting for the release of documents under the Freedom of Information Act. There were some further delays by Homeswest to provide the sought information and, by the time they were provided, the 12 months deadline for the appeal had expired by 6 days. Homeswest refused to refer the matter to the appeal process and, instead, conducted its own "internal review" process.

Mrs Penny's Claim

Mrs Penny claimed that Homeswest discriminated (directly and indirectly) against her on the grounds of her race in the area of accommodation by:

• delaying her request for review of the debt;
• applying its policies in determining her debt arising from the previous tenancy;
• delaying her request to re-house her after evicting her from the previous property;
• re-housing her in substandard accommodation;
• requiring her to enter into a head lease agreement with an Aboriginal corporation.

The Tribunal dismissed the case and found that:

1. Mrs Penny's tenancies were marked by anti-social behaviour including street fighting, threats, foul language, and rock throwing.

2. Homeswest acted on the neighbours requests not to house her in one of its properties, and that this was not necessarily indicative of a discriminatory attitude, but a reasonable view that to put another Aboriginal family in the property would not help that family nor would it help the community and, as a result, the most appropriate solution was for the next tenant to be non-Aboriginal.

3. The Tribunal, however, remarked that this decision "had the unfortunate, if unintended, consequence of reinforcing negative stereotypes."[13]

4. The nature of the conditions imposed on Mrs Penny did not evidence discriminatory attitude on the part of Homeswest. Homeswest was not obliged to re-house Mrs Penny after evicting her from the property, conditionally or unconditionally.[14] That Mrs Penny required re-housing was a situation of her own making. A requirement for a head lease was not regarded as a requirement imposed only on Aboriginal tenants.

5. The Tribunal also pointed out that there was no evidence with sufficient weight proving that the housing Homeswest provided to Mrs Penny was substandard.

6. Further, the Tribunal found that the statistical evidence provided by the Complainant in relation to the allocation of priority housing by Homeswest was too small in size and not subjected to rigorous statistical analysis, and that witnesses for the respondent adduced possible explanations justifying the discrepancies identified.[15]

7. "Much of the material provided to the Tribunal in this case indicated that there is a firmly held perception amongst members of the Aboriginal community and amongst Aboriginal organisations that Homeswest discriminates against Aboriginal people. Rebutting such allegations at all levels up to and including this Tribunal must be resource intensive. In those circumstances, maintaining comparative and explanatory data is a first and significant step in determining whether such allegations have merit. The absence of the necessary statistical information makes it extremely difficult to determine whether Homeswest in fact discriminates against Aboriginal people or whether the perception held by the Aboriginal community is a myth"[16]

Does The System Work?

Although the nature of the Residential Tenancies Act is "beneficial" in spirit and, most times, in practice, a complainant must still overcome several hurdles if a complaint is to be proven. Although relaxed, the system remains adversarial in nature. The Act's object and purpose includes the elimination of discrimination against persons on the ground of race in the area of accommodation and the promotion of recognition and acceptance within the community of the equality of all races.[17] However beneficial the Act was intended to be, and as flexible as the Tribunal may be in hearing a matter within the constraints of the Act, the system remains adversarial. This is the main barrier that Aboriginal people have to overcome if a case is to be proven.

In Penny v State Housing Commission, the Tribunal concluded with a comment encapsulating what it takes to prove direct and indirect discrimination:

The Tribunal wishes to express its concern at the fact that claims proceed to trial before the Tribunal where complainants fail to adduce cogent evidence of each essential requirement of the Act. This claim falls into this category. The Tribunal appreciates that it is often exceedingly difficult to establish discrimination even where it exists, but the answer does not lie with proceeding with claims where there is no evidence in support of essential elements of the claim. Many complainants have a firmly held belief that they have been discriminated against. In almost all cases the existence of such a belief, without more, will not suffice to establish a claim in this tribunal...

In cases of direct discrimination it is not enough to establish that the conduct of the respondent has caused a detriment and that the complainant has one of the characteristics protected from discrimination by the Act. It is also necessary to prove, either by direct evidence or evidence from which an inference can properly be drawn, that the complaint was treated less favourably than a person who does not share that characteristic and that the less favourable treatment was because of that characteristic and not for some other reason.

In cases of indirect discrimination it is essential for the complainant to establish, by direct evidence or evidence from which an inference can properly be drawn, that a substantially higher proportion of people who do not share the relevant characteristic would be able to comply with the conditions of which complaint is made and with which the complainant cannot comply.

The principles the Tribunal adheres to in determining whether a complaint is made up or not seem to be "neutral" in nature, and consistent with the notions of natural justice characteristic of the common law system. However, a close analysis of the decision suggests that this seemingly "fair" judicial mechanism could be regarded as... "a requirement or condition 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."[18]

The system is unable to see beyond the underpinning difficulties that Aboriginal tenants face when renting, or applying to rent, a home from Homeswest. The system disregards issues that do not fit within the legal parameters in determining a complaint. An analysis of several factors reveals that this case was doomed to fail from the start.

Problem # 1: Witness Imbalance

Mrs Penny presented two witnesses: herself and a registered nurse who worked with the Noongah community, dealing with housing, health and homelessness issues.

Mrs Penny's legal counsel also tendered expert evidence in the form of a transcript of the evidence given by an expert in the Martin case, but the Tribunal declined to accept it. The Tribunal did not elaborate on its reasons in the decision, but remarked that Mrs Penny rejected an invitation to call direct expert evidence.

The Respondent called 5 Homeswest employees to give evidence on its behalf, relying on internal documentation to refresh their memory and to supplement their evidence of their dealings with Mrs Penny. The witnesses were the Regional Manager of the North Metropolitan Region at the time, the General Manager at the time, the Area Manager at the time, another Regional Manager of the South East Metropolitan Region at the time, and a Homeswest Manager of its Rental Services Division.

The imbalance is evident. The Complainant, like in many complaints of this type, lacked literacy skills, belongs to a culture with a different set of values (both legal and moral), and had limited access to crucial statistical and comparative data to make her point.

Her second witness, although knowledgeable from first hand experience, was not able to provide reliable statistical evidence, which the Tribunal could use to make a valid inference within the parameters set by the Act and interpretative decisions. On the other hand, the Respondent's witnesses were well educated white males, well informed, and with unlimited access to the Respondent's data, records and information, validated by their personal involvement with Mrs Penny at various stages of her tenancy history.

Problem # 2: Imbalance in Legal Resources

There was a serious imbalance in legal resources available to each party. This is not to say that Mrs Penny's counsel did not do his job to the best of his abilities, or that Homeswest legal representatives were better that him. Rather, it is arguable that Homeswest is well resourced by the legal arm of the State: The Crown Solicitor's Office, who has the personnel, time and expertise to prepare adequately with this type of complaints.

On the other hand, the Complainant - in my view - was bravely represented by a community-centre lawyer: The breed of lawyer, who works with a very limited amount of time and resources and manages to work miracles out of commitment and creativity.

Problem # 3: Irrelevance of Trends in Proving Complaints

TAS reports the existence of alarming trends involving Aboriginal public housing in Western Australia:[19]

Overrepresentation in homelessness: more than half of the homeless in WA are Aboriginal and one in three is under the age of 14.

Discrimination in the Private Rental Market: There is anecdotal evidence showing how Homeswest requires Aboriginal people to demonstrate that there is no adequate housing available in the private market before qualifying to be housed in public housing.

Overrepresentation in Termination: TAS claims that 18% of Homeswest tenants identify themselves as Indigenous, and that more than 40% of the 3398 termination notices issued by Homeswest in 2001 were served on Aboriginal tenants. And this data does not take into account many Aboriginal tenants who vacate the premises on receipt of the notice, and who do not appear in official eviction notices.

Reasons Justifying Termination: TAS claims that Homeswest uses three common reasons to justify terminations of tenancy, namely rent arrears, anti-social behaviour, and failure to maintain property standards.

Rent arrears is a common problem present in cases involving evictions of Aboriginal tenants from Homeswest dwellings. The Tribunal and the Court of Petty Sessions are ready to accept evidence from Homeswest showing the large amounts of money that some Aboriginal tenants owe to their landlords. This is seen as a contributory factor by Aboriginal tenants leading to a "just and fair" course of action: eviction.

The rule seems to be fair and clear: if a tenant does not pay the rent, and accumulates a large debt to her/his landlord, the landlord is justified in terminating the tenancy. Such a black and white view of the law definitely ignores the socio-economic and institutional causes for getting into large debts in the first place. Such factors seem to be irrelevant in proving racial discrimination in this type of cases.

First, rental arrears themselves seem to arise from the fact that many Aboriginal families seem to live from crisis to crisis worsened with unemployment and a very limited income. Other times, arrears are caused by the expenses involved in fulfilling their cultural obligations such as attending to funerals.

Sometimes the increase in rental arrears occurs as a result of the tenant not declaring the income of all the people residing in the premises as required by Homeswest. When the tenant fails to provide Homeswest with this information, Homeswest increases the rent to the "market rental value" of similar properties in a given area.

Other times, large debts consist of what Homeswest calls "tenant liability", which itself consists of damage caused to the property by people residing at, or visiting the tenant's dwelling.

In fairness, Homeswest has a domestic violence policy that "absolves" a tenant if the damage was caused by an abusive partner, or if the tenant reports the incident to the police and obtains a police report. However, the policy is not good for Aboriginal people, as they do not seem to have a relationship of trust with authorities, and dobbing a fellow Aboriginal person may result in ostracism by the rest of the Aboriginal community. It is just not the right thing to do.

Damage to property may also occur due to the poor quality of the materials used in the house, or due to the age or state of the house itself at the time of renting it to an Aboriginal family. However, this is hard to prove because, typically, Aboriginal complainants may not be very thorough in reporting the state of the property before taking possession. There may be many reasons for this; one of them is the fear of being removed from the waiting list if they are seen to be too picky. Another reason is that some Aboriginal families are so keen to move into a home, that they often overlook the run down state of a property.

TAS claims that much of the Homeswest stock provided to Aboriginal families is old and run down, with deteriorated walls, dropped stumps, roof leaks, mould and vermin, corroding pipes and electrical problems. TAS also claims that, sometimes, Aboriginal tenants occupy properties that are earmarked for redevelopment. Homeswest seems reluctant to spend money in fixing such properties for obvious economic considerations.

Similarly, TAS claims that, in situations where a tenant is in arrears (of whatever sort), Homeswest is only willing to perform "essential repairs". Broken cupboards and windows, drafty floor boards, lack of windows security screens, and the like do not seem to fit into this category. To compound the problem, and according to TAS, "tenancies occupied by Aboriginal families are often subject to a higher level of wear and tear than the average because of the higher number of occupants and children"[20] Arguably, overcrowding often occurs as a result of homelessness caused by Homeswest evicting other Aboriginal families.

At the end of a tenancy, Homeswest looks at the wear and tear, and charges the tenant accordingly. Sometimes they charge an inflated figure, and whilst there are internal mechanisms to review their bills, Aboriginal people do not often have the time, knowledge of Homeswest policies, experience and ability to activate a review.

In respect of the "anti-social behaviour" reason, it is not denied that this happens in many cases. But this is only one side of the coin. The other side of the coin that is often ignored is that community prejudice is alive and untreated. Whilst there may be many justified complaints of anti-social behaviour, there are also many instances when such complaints arise out of ignorance and intolerance from neighbours who do not want Aboriginal families in their street. In other instances, the "anti-social behaviour" may be attributed to a funeral or an episode of family violence, mental illness or substance dependency, or all of the above factors together.

As a landlord, Homeswest has the obligation to investigate complaints from neighbours, but TAS suggests that the investigation takes the shape of advice to the complaining neighbours on how to document and cause Homeswest to activate an eviction notice.

Conversely, if an Aboriginal tenant complaints to Homeswest of harassment by her neighbours, Homeswest simply (and correctly) states that it is not within its power to do anything about it. The "failure to maintain property standards" reason, seems to disregard the difficulties that some Aboriginal families seem to have when inhabiting a run down, overcrowded dwelling.

Homeswest uses all of the above reasons in a legal framework that legitimizes its use. The Residential Tenancies Act (WA) protects Homeswest as a landlord, and ignores the civic and statutory duty that Homeswest has in providing accommodation to those who need it. Moreover, as long as Homeswest plays by the book (the RTA), the Tribunal does not seem to take into account the causative factors triggering the behaviour that justifies Homeswest actions. If the Tribunal does take them into account, it is often to the detriment of a complainant's case, justifying Homeswest actions.

Problem # 4: Welfare Dependency, Victim Mentality, and 'Unlawful discrimination'

Our Aboriginal population is heavily reliant on welfare benefits and supporting agencies - in their bid to help - seem to perpetuate this behaviour.[21] With the eagerness and zeal characteristic of proactive community organisations, Aboriginal people are encouraged to complain and confront organisations when their expectations are not fulfilled. The picture is also in black and white: They are the victims, and service providers are the oppressors.

That way of looking at reality is symptomatic of over 200 years of oppression and dispossession, but it is not always accurate. Sometimes a delay in providing a transfer, or an application for a house, is readily interpreted as "racism". Without exploring any other possible explanation such as a bona fide reasons for the delay, or even sheer incompetence, many Aboriginal complainants are too ready to wear the victim hat, and declare a firmly held belief that the reason for such delay is their race. It could be racism, but not the type of racism recognised in the Equal Opportunity Act 1984 (WA) as "unlawful". It could simply be "institutional racism" as defined in the Stephen Lawrence report.[22]

Community and advocacy organisations are also ready to claim racism in such cases, reinforcing the victim mentality framework and, as a result of this interaction, many complaints, in my view, are lodged with the Commission with no evidence supporting their claim. This type of complaint repeats a mantra: "A Service is denied or delayed, I am an Aboriginal person, and therefore I've been discriminated." As the Tribunal has pointed out, repeating this mantra, or even firmly believing this to be true, does not prove the existence of unlawful discrimination in most cases.

This course of action sometimes translates into a use of the Commission's resources for matters that should be entertained in other more appropriate jurisdiction. However, community organisations and some individual Aboriginal complainants are trying very hard to be heard, and they take any avenue available to address their concerns. From a community advocate's point of view, this is understandable.

The word spreads around, and more and more complaints are lodged at the Commission without evidence showing the existence of discrimination as defined in the Act. To the disappointment of this class of complainants, the Commission ends up dismissing the complaints for lack of substance. Complainants become disappointed, and are ready to point out that the Commission is a government institution, and that they did not really expect it to help them against Homeswest anyway, when totally the opposite is true.

Adopting and reinforcing a victim mentality is disempowering. It takes away the possibility of being able to change reality, of taking control of one's individual life. It takes away the notion of collective and individual responsibility, and the power to change things that need to be changed. Reinforcing the victim mentality under the current legal framework of anti-discrimination law in Western Australia also simplifies the nature of the problem of Aboriginal public housing in Western Australia as being the result of the interaction between a villain (Homeswest) and a victim (Aboriginal tenants).

As discussed in this paper, the dynamics of such an interaction, and the underlying problems Aboriginal tenants face in Western Australia slip through the conceptual gaps in our anti-discrimination legislation. As a result of that, discrimination is not proven before the Tribunal, and the housing situation for Aboriginal tenants and applicants remains the same.

Conclusion

The system works for many complainants, in line with Western principles of natural justice. However, the very safeguard principles afforded by our legal system to ensure a fair trial, are the same factors that prevent "institutional racism" to be exposed. Aboriginal housing is, and has been for a long time, in crisis. The judicial outcomes of the only three cases alleging racial discrimination against Aboriginal tenants by Homeswest only show that the system is not adequate to resolve this serious problem.

Should the Commission stop processing complaints against Homeswest then? No. The Commission has a statutory obligation to investigate and conciliate any complaint alleging unlawful discrimination in any of the areas prescribed by the Act. But contrary to the "shock and awe" approach taken by community and advocacy centres, and because of the inadequacy of the system to deal with this problem, I am of the view that flooding the Commission and the Tribunal with cases without supporting evidence is counterproductive.

Community organisations argue that even if complaints fail, they highlight Homeswest's inadequacies in providing Aboriginal people with suitable housing. To some degree, this is true. However, it is also my view that every time a complaint of this nature is dismissed, Homeswest actions are vindicated, and the negative stereotype attributed to Aboriginal tenants, families and individuals is only reinforced when cases such as the Martin case and the Penny case are reported by the media. As one of my favourite personalities of the 20th century once asked, I ask now "what is to be done, then?"[23]

The complexity of the problem requires a holistic approach, taking into account not only Homeswest culture and role as a landlord, but also taking into account the social, economic, cross-cultural, and emotional factors of this social equation. But that should be the topic of another paper.

---

Notes

[1] Housing Agreement (Commonwealth and WA) Act 1990.

[2] Submissions by Homeswest to EOCWA section 80 Enquiry, May 2003, page 7.

[3] Submissions by Homeswest, op cit, page 7.

[4] ibid.

[5] Homeswest's submissions, op cit, page 8.

[6] Homeswest Submissions, op cit, page 12.

[7] The Equal Opportunity Tribunal is a statutory body created by the Equal Opportunity Act 1984 (WA), and independent from the Equal Opportunity Commission.

[8] (1999) EOC 92-975.

[9] (1999) EOC 93-023.

[10] (2003) EOTWA, Unreported, delivered on 2nd May 2003.

[11] Op cit supra, at 79,479.

[12] Tenant's Advice Service WA (Inc).

[13] Page 63, paragraph 195 of the Penny decision.

[14] Page 64, paragraph 197 of the Penny decision.

[15] Page 66, paragraph 204 of the Penny decision.

[16] Pages 66 and 67, paragraph 206 of the Penny decision.

[17] Sections 3(a) and (d) of the Act.

[18] Section 36(2) of the Act, defining indirect discrimination. To erase any doubt, I am suggesting that the statutory legal framework indirectly discriminates against Aboriginal complainants.

[19] TAS Talk (TAS Newsletter), Issue Number 6, May 2003, pages 1 and 3.

[20] TAS Talk, op cit supra, page 3.

[21] Aboriginal activists such a Noel Pearson have consistently acknowledged and adopted this view in books such as The Right to be Responsible.

[22] As quoted at the beginning of this paper.

[23] The title of I.V.U Lennin's book "What is to be Done".