Homeswest versus Aborigines: housing discrimination in Western Australia.

Beresford, Quentin

Abstract: Housing for Aboriginal families became a controversial issue in Western Australia during the 1990s as a result of an increasing number of evictions of those living in state housing properties. This article examines the social, legal and political circumstances surrounding these evictions. It looks at a range of issues about the nature of institutional discrimination and the ambiguity between direct and indirect discrimination. It also examines the capacity of the legalistic processes of the Human Rights and Equal Opportunity Commission to deal with these issues.

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During the 1990s, a continual spate of eviction orders served on families by Western Australia's housing authority, Homeswest, attracted growing publicity and incited deeply divided community reactions. Under section 64 of the Residential Tenancies Act, Homeswest holds the power to evict tenants without notice from the properties for which it acts as landlord. Reasons for eviction include anti-social behaviour, overcrowding and failure to pay rent. During the period under review, the bulk of these evictions fell on Aboriginal people, leading to the accusation that Homeswest, as the public authority responsible for housing the most disadvantaged, was practising direct and/or indirect discrimination against its Aboriginal clientele. In a number of cases, Aboriginal people took Homeswest to the Human Rights and Equal Opportunity Commission (HREOC), a small number of which were heard by the Equal Opportunity Tribunal and, in one highly publicised case, the Supreme Court.

The evidence contained in the transcripts from these cases provides an important case study around which to examine claims about institutional discrimination. Moreover, the conflict between Homeswest and a number of its Aboriginal clients provides important insights into the broader failure of social policy for Aboriginal people and the limitations of current anti-discrimination legislation as a means for them to pursue justice.

Background

The vast majority of Aborigines rely on public housing. Lower levels of income mean most are unable to rent privately or buy. Lack of access to the real estate market is compounded by racial prejudice, which has been documented many times. Thus, Homeswest has strong obligations to the Aboriginal community.

In the mid-1990s, 70 per cent of Aboriginal households in Western Australia were in rented accommodation, with 62 per cent of those being rented from government, overwhelmingly from Homeswest (Task Force on Aboriginal Social Justice 1994, vol 2:474). Section 64 evictions by Homeswest dramatically increased in the early 1990s as part of a strategy to reduce the agency's debt and to improve personal responsibility on the part of its clients (Anti-Section 64 Coalition 1995:10). At the commencement of the crackdown, it was estimated that Homeswest was owed up to $11 million in unpaid rent (West Australian, 10 May 1993:5). The campaign was part of a broader agenda of the newly elected Court coalition government to reduce government debt. Many of those evicted under the policy became homeless and survived by living in parks and cars and with family.

Estimates of the number affected by the rise in evictions have been subject to differing claims. In 1997, Homeswest maintained that 51 per cent of evictions (40 out of 79 cases) involved Aboriginal people (Aboriginal Affairs Department 1997:51). However, a year later, a journalist claimed that about 60 per cent of Homeswest evictions for the first half of 1998 were of Aborigines, even though they made up only 19 per cent of the tenancies (West Australian, 26 September 1998:14). Whatever the figure, Aboriginal people suffered a grossly disproportionate number of evictions.

The chief executive officer of Homeswest, Greg Joyce, strenuously denied the claim that his agency acted in a discriminatory manner towards Aboriginal families. His often-stated policy towards evictions was explained as a three-part requirement made of all tenants, irrespective of race: to pay the rent, to live in harmony with neighbours, and to maintain the properties to an acceptable standard. The application of these standards appeared to be impartial. However, closer examination, and one which takes into account the broader social circumstances of Aboriginal people, suggests that its application during the 1990s `crackdown' raises some serious issues of institutional discrimination. Before unpacking this claim in detail, it is important to see the policy in its historical context, for claims about discrimination by Homeswest form but one point on a continuum of discrimination by West Australian housing authorities towards Aboriginal people.

Institutionalised culture of discrimination

Housing for Aboriginal people in the southwest of Western Australia has been characterised by overt discrimination from the earliest days of the twentieth century. The Aborigines Act 1905 was designed to lay the foundations of legal separatism: Aborigines could be forcibly removed from towns and placed on reserves. The number of reserves expanded from the 1930s through to the 1960s. Throughout the entire period, conditions on these reserves were described by a few sympathetic contemporaries as deplorable. Families existed without adequate water and sewerage systems and in the most rudimentary dwellings.

A Royal Commission into Aboriginal Affairs, held in 1974, openly acknowledged for the first time the unspoken realities of life for people on the reserves. According to its report (1974:23, 69), conditions were so bad that they `certainly do not motivate a person to improve their life circumstances, but have the effect of breaking most men's spirit to the point where they are resigned to their conditions'. Moreover, conditions for Aborigines in general made many `resentful of authority' and `either belligerently anti-social or dejectedly apathetic'. Members of the public, most of whom openly resisted any moves permitting the entry of Aboriginal people into suburban areas, rarely challenged official discrimination against them up to, and immediately after, World War II.

In the early 1950s, the Native Welfare Department and the State Housing Commission combined to sponsor 100 Aboriginal families into conventional suburban housing. From the perspective of State Housing, the scheme failed. Within a few years, most families had been forced to relinquish their properties, unable to meet their financial commitments for rent and purchase. The attitude of the department was summed up in its 1957 annual report: `Every consideration has been shown to these people by the State Housing Commission and this office, but in very few cases has the response been worth the effort' (Department of Native Welfare 1957:37). The failure gave heart to supporters of separatism: Aborigines were incapable of living in the white way. Separatism was the only answer. Henceforth, a scheme of transitional housing perpetuated this view.

The scheme envisaged Aboriginal people moving through three stages of housing: `primary transitional' housing on reserves, which was little more than basic houses grouped around communal facilities; `standard transitional', which saw Aborigines move into conventional houses in country towns; and a final transition to a conventional suburban house. In reality, the scheme gave welfare authorities ongoing power to control the movements of Aboriginal people. Twenty years after the scheme commenced, 487 `primary transitional' houses had been built, 251 `standard transitional' and only 35 conventional suburban houses (Department of Native Welfare 1967:26). Thus, the bulk of Aborigines were forced to remain on reserves in housing which, in 1970, was also condemned by a prominent University of Western Australia academic as `little more than rural black slum ghettos' and `utterly inadequate for hygienic family living' (Schapper 1970:42).

There is an important, but rarely acknowledged, point to emphasise from this brief historical sketch: discrimination by housing authorities has deep and continuous roots in Western Australia. In 1975 a federal House of Representatives committee found that the State Housing Commission (the forerunner of Homeswest) was dragging its feet in housing Aboriginal people still living on reserves. It found that the commission had an inflexible attitude towards eligibility requirements and used as an excuse community reaction against the housing program for slowing the rate of building houses for Aboriginal people (HRSCAA 1975:46-7). As late as 1992, another parliamentary committee found strong evidence of discrimination and lack of cultural sensitivity within Homeswest (HRSCATSIA 1992:135). More recently, the inquiry into the stolen generations heard similar evidence, part of which drew attention `to the high level of discretion at the regional level in placing Aboriginal families' (HREOC 1997:550).

This accords with the experience of community workers directly in contact with homeless Aborigines in Perth, as one explained (pers. comm.):

 To obtain a house is one of the greatest difficulties Aborigines experience
 in Western Australia. On any one night there are dozens of Aborigines
 sleeping in the parks and under bridges. This situation reflects the
 policies and practices of Homeswest which is unwilling to help many
 Aboriginal families from obtaining housing. Sometimes it refuses to accept
 applications; on other occasions Aborigines are subject to stereotyping of
 a sort which labels them as troublesome tenants.

Therefore, the claim that Homeswest applies a neutral set of requirements, irrespective of race, is deserving of much greater scrutiny. At least three factors can impinge on the ability of Aboriginal people to meet the stipulated requirements, suggesting that eviction under section 64 may not be reasonable in many circumstances.

The legacy of assimilation

Few Aboriginal families in the southwest of Western Australia have been unaffected by the policy of assimilation, and especially the policy of forced removal of children from families. This policy was widely applied in the state, where authorities were imbued with the racist idea of assimilating Aboriginal children into the lower rungs of white society. Some Aboriginal families have experienced several generations of removal. The consequences of this policy on many of the individuals affected have now been well documented but, apparently, not fully appreciated by agencies such as Homeswest. Thus, many of those affected by a family history of removal are known to have high levels of emotional and psychiatric problems, family dysfunction and alcohol abuse (see ALS 1995; Beresford and Omaji 1998).

There is no way of knowing the extent to which this background affects the ability of some Aboriginal people to live in the state of harmony with neighbours that is required by Homeswest. However, it was acknowledged, in the Supreme Court of Western Australia hearing of Joan Martin's widely publicised case against Homeswest for discrimination, that one of the occupants of the house and against whom claims of anti-social conduct were levelled was a tragic victim of removal:

 [He was] a 46 year old man who suffered from post traumatic stress disorder
 and depression. He had a history of epilepsy. He had been taken away from
 his parents at the age of seven and had lived at Tardun mission and the New
 Norcia Orphanage until the age of 17 years. He had a history of frequent
 admissions to hospitals. (Supreme Court 1998:11)

Evicting such people in the manner practised by Homeswest is surely not reasonable, given the circumstances of their lives. For many, eviction represents compounded injustice: having been removed by the state as children, they are denied stable housing as a consequence of the effects of the original policy.

However, there are several wider points to take into account in relation to alleged anti-social conduct. Overcrowding among some Aboriginal families living in Homeswest properties can exacerbate undesirable forms of behaviour. The extent of overcrowding will be examined in a later section, but the problem during the 1990s was, in part, caused by evictions. Those evicted often moved in with relatives, creating overcrowding which Homeswest officers sometimes ignored until problems arose. The judges hearing the Martin case noted this matter:

 The Tribunal recorded that one of the officers of Homeswest had recognised
 as `a consideration that passed my mind' that if one accepts the likelihood
 that evicted members of an Aboriginal family will find their way to other
 members of the family for shelter, and the possibility that disturbances
 will then occur due to consequent overcrowding, the combination of these
 factors is likely to prejudice the tenancy of the family member at the end
 of the line. The Tribunal said that this is one of the many examples of the
 way in which `the dual role' of Homeswest as landlord obliged to manage its
 asset sufficiently, and as a houser of last resort, can produce a harsh
 outcome. (Supreme Court 1998:38)

Moreover, while Homeswest did define specific types of conduct as anti-social, such as loud noises, physical aggression, drunkenness, and foul language, its approach to substantiation was described as `unrigorous and lacks clarity' (Anti-Section 64 Coalition 1995:12). Such claims could be based on the uncontested word of a single neighbour, or from organised racist campaigns from a particular group of neighbours.

The impact of racism

There is justifiable concern that evictions for antisocial behaviour may have been caused, or at least exacerbated, by the racist attitudes of neighbours, which some Homeswest officers may have directly or indirectly shared. As previously discussed, the official policy of separatism for Aborigines was only terminated in the early 1970s. Community opinion during the 1990s contained strong elements of hostility. This was acknowledged in a 1994 state government inquiry, which found that `racism exists in the broader community to a disturbing extent' and that community attitudes `tend to generate a "we" versus "they" attitude in relations with Aboriginal people'. In addition, the inquiry reported that the overrepresentation of Aboriginal people in the justice system created the perception that they were `naturally criminal', `a group to be feared' and a group `which conflicts with the usual societal values' (Task Force on Aboriginal Social Justice 1994, vol 2:550-1).

Claims of racism were at the centre of several of the Equal Opportunity Tribunal hearings. Mrs Alone, for example, alleged that she and her children were subject to racial harassment by neighbours and other local residents. She claimed that her daughter had been struck with a brick which had been thrown at her by people living across the park. Moreover, `every time her children went out onto the park to play the white people who owned big Alsatian dogs nearby would let them out and get them onto the children so that they had to climb trees to get away'. However, according to a Homeswest officer, there was no investigation by Homeswest into Mrs Alone's complaints of racial harassment, although neighbours' complaints against her were actively investigated and recorded on file (Equal Opportunity Tribunal 1991:12).

Claims of racial harassment by neighbours also formed part of Joan Martin's claim against Homeswest for discrimination. A review of the evidence (McGlade and Purdy 1998) found supporting evidence. The coordinator of the neighbourhood campaign against the Martin family had publicly expressed views against the integration of Aborigines into mainstream suburbs and the family had been subjected to racist hate mail from some of the residents.

Aboriginal people claim that such racist attitudes affect decisions made by Homeswest. The experience of the Narkle family was a by no means isolated one:

 An Aboriginal family of four thrown out of their Homeswest house in York
 yesterday were denied a chance to defend themselves. Homeswest used part of
 the Tenant's Act, which allows eviction without reason after complaints
 about anti-social behaviour, mainly from one neighbour. Other neighbours
 who rallied around the Narkle family ... were outraged that Homeswest did
 not ask their opinion. (West Australian, 1 November 1994:5)

Mrs Alone claimed in her case against Homeswest that it had failed to properly fix her leaking sewerage system because she was Aboriginal:

 Mrs Alone testified that the toilets and baths and kitchen sinks were all
 blocked up from the very first day she moved in ... The effects of the
 sewerage system blockages were appalling. As Mrs Alone described the
 situation--`If you used the toilet you couldn't press the button because it
 overflowed everywhere and if you had a bath you couldn't empty it'... Mrs
 Alone complained about the sewerage system problem repeatedly throughout
 the period ... Each time a request was made Homeswest arranged a contractor
 to attend and unblock the drains, either the same day or the following day.
 Late in the tenancy Homeswest representatives and a maintenance contractor
 inspected the Property and the latter expressed the opinion that repeated
 unblocking of the system was no good; what was required was a new system.
 That was not installed during Mrs Alone's tenancy. Subsequent to
 repossession of the Property by Homeswest ... maintenance work was done on
 it prior to its occupation by new (non-Aboriginal) tenants. That work
 included a complete overhaul of the sewerage system. (Equal Opportunity
 Tribunal 1991:8-10)

The difficulty Aboriginal people have in successfully prosecuting such cases is referred to as the `the burden of proof'. In short, discrimination on the grounds of race is extremely difficult to prove, as the Tribunal pointed out in the Alone case:

 For a complaint of racial discrimination to be made out of the Act requires
 proof that less favourable treatment was accorded the Complainant `on the
 ground of' her race. Here, therefore, Mrs Alone must show the fact of her
 Aboriginality had a proximate bearing on the relevant decision, act or
 omission and had a causally operative effect on such. (Equal Opportunity
 Tribunal 1991:7)

In other words, some direct link must be drawn between the alleged unfair treatment and race.

Cultural issues

In many of the evictions enforced by Homeswest, overcrowding was a central, underlying issue. Overcrowding was both contrary to the tenancy agreement and, in some cases, a contributing factor to poor relationships with neighbours and especially in the perception white neighbours had of Aborigines. However, Homeswest overlooked both its own role in exacerbating overcrowding and its cultural underpinnings. Aborigines have a long tradition of cultural obligation to house wider family members. In fact, `one of the core values in being Aboriginal is the family ties with the kinship system' (Shelter WA 1997:7). This means housing family members who may have moved to the city from the country and taking in those made homeless by Homeswest evictions. However, the nature and extent of these obligations have proved to be legally contentious.

A central part of Joan Martin's original claim centred on a cultural obligation to house otherwise homeless members of their immediate and wider family, which led to overcrowding. Sixteen members of the family were living in a small three-bedroom house. This obligation was claimed to be especially strong in relation to Mrs Martin's role as a grandmother to look after her grandchildren, a role she was performing. Evidence to the original Tribunal hearing of the Martin case supported her claim. Mrs Merrin, a community worker with Aborigines, explained:

 Mothers in Aboriginal families have a cultural responsibility to `mind
 their flock' and will take in children and grandchildren in need of
 accommodation. That responsibility to house relatives in need of
 accommodation also applies to extended families such as aunts and uncles
 ... I see overcrowding as a cultural issue for Aboriginal people which
 results in their way of living being different from the non-Aboriginal way.
 (Supreme Court 1998:14)

A University of Western Australia anthropologist, Dr Stanton, supported these claims, adding: `Kin-based expectations are based on the recognition of socially accepted, and indeed prescribed, reciprocities and obligations. To have turned away a homeless kin person would have "shamed" the appellant' (Supreme Court 1998:15).

However, on this occasion, Homeswest led with evidence from Robert Issacs, an Aborigine who was president of the Aboriginal Home Owner's Scheme administered by Homeswest. He challenged the extent of the cultural obligation to house relatives:

 It was open to an Aboriginal person to refuse to house relatives,
 particularly if that would have an adverse effect on that person. In his
 view, overcrowding could create stress and social problems and it was an
 entirely legitimate requirement that only a certain number of people are
 allowed to live in a particular sized property. (Supreme Court 1998:17)

The Tribunal accepted the thrust of Issacs' evidence, stating that it was not satisfied that cultural obligations explained the decision to accommodate 16 members of her family.

From this point, the issue of cultural obligation was subjected to differing legal interpretation in the Supreme Court, which had on two occasions heard the case: first, on appeal from Mrs Martin for the Tribunal decision (which she won), and, second, on counter appeal from Homeswest (which it won). In the first hearing, the court argued:

 The Tribunal did not give reasons to reject the evidence of Mrs Merrin [the
 community worker] concerning the cultural responsibilities of Aboriginal
 people to take in relatives who need accommodation. Also it did not give
 reasons to derogate from Dr Stanton's evidence as to the appellant's
 cultural responsibilities. Further, Mr Issacs had agreed that there may be
 a greater cultural expectation of assistance in Aboriginal culture than in
 European culture, although he said that in his view there was no cultural
 issue involved in these cases. (Supreme Court 1998:35)

Homeswest rejected this line of reasoning in the subsequent appeal. On this occasion, the court invoked the argument of limitations raised by Issacs and linked overcrowding to the broader issue of antisocial behaviour: `Overcrowding is one thing. Overcrowding resulting in the commission of acts of nuisance is another.'

However, in accepting this line of reasoning, there are several points worth stressing. First, if a cultural obligation was found to exist, how were its boundaries to be defined, and by whom? Second, Homeswest should have accepted some of the consequences of overcrowding when tolerating its existence in some instances.

Policy implications

Homeswest has recognised that its policy of eviction carries potentially severe social costs. In 1991 it established the Supported Housing Assistance Programme (SHAP) to provide support to families or individuals experiencing difficulties in maintaining their tenancy. Since its inception, SHAP has assisted over 500 families, 80-90 per cent of them Aboriginal.

A review of the program undertaken in 1997 noted that the scheme had resulted in a decline in rental arrears, complaints and tenant liability and a reduction in the time spent by Homeswest in managing these tenancies. The scheme has been expanded state-wide and is believed to be unique among housing authorities in Australia (Homeswest, pers. comm.). However, the extent of SHAP's impact needs to be treated cautiously because:

* evictions of Aboriginal people continued during the 1990s;

* the issues being dealt with by SHAP represent well-entrenched lifestyles and behaviour associated with the impact of past policies and structural poverty which, combined, create long-term unemployment, low self-esteem, domestic violence, and alcohol and substance abuse, all of which indicate the need for a whole-of-government approach; and

* some Aborigines are reluctant to receive assistance from other than the immediate family.

All of these factors signify that Aboriginal housing remains an unresolved social problem for government. Notwithstanding the recent efforts by Homeswest to improve its dealings with Aboriginal families, there is much to suggest that current approaches are inadequate. The coordination of government agencies dealing with Aboriginal clients at risk of eviction has been a particular problem. Investigations by Shelter WA (1996:57) revealed the instance of:

 a meeting organised of representatives from government departments,
 hospitals and non-government agencies involved in a particular tenancy. Ten
 different groups attended the meeting, not including the Police or Family
 and Children's Services (who were involved but not invited). Clearly, a
 significant amount of resources were being provided to this household but
 with no apparent coordination until a meeting called by SHAP.

It has to be asked whether Homeswest, as the agency responsible for housing the disadvantaged, should have pursued a policy of eviction which, while not necessarily discriminatory in intent, produced inequitable outcomes for Aboriginal people. Based upon judgements of both the Equal Opportunity Tribunal and the Supreme Court, it will be very difficult for Aboriginal people to sustain claims of discrimination against Homeswest.

However, the problems associated with Aboriginal housing extend beyond Homeswest. Although the requirement placed on all Homeswest tenants to abide by certain standards of behaviour would be widely regarded as reasonable, it should not be forgotten that the origin of many of the problems in cases where Aboriginal families have been evicted from Homeswest premises lies in the impact which the policies of assimilation have had on some individuals. Evicting Aboriginal families, especially without an acceptable alternative form of accommodation, has several undesirable outcomes for Aboriginal people.

First, as the 1990s cases have demonstrated, it worsens overcrowding among existing Homeswest Aboriginal families, exposing them to possible eviction orders. In this way, the application of eviction orders creates the conditions for an ongoing cycle of evictions. Second, in consequence of the above, evictions expose Aboriginal children to removal from their families for reasons of neglect. In light of the tragic history of this practice within the Aboriginal community, every effort ought to be made to avoid the circumstances where this is repeated in the lives of yet another generation.

Evictions of Aboriginal families in the manner conducted by Homeswest during the 1990s represent a blunt and counterproductive instrument to deal with the wider problem of the fragmentation of many Aboriginal families, and especially those living in metropolitan Perth. As Aborigines themselves have explained:

 The strength and cohesiveness of the extended family as an institution has
 been undermined by historic factors. The main features of these life
 experiences involve general societal discrimination and prejudice as well
 as systemic racism reflected in poor relationships with state authorities
 ... Family fragmentation is the result of displacement of familial
 authority by pervasive non-Aboriginal social influences and the increasing
 struggle to pass on essential values that bind family relationships.
 (Mangurie/WACSS 1994:24)

It is on these issues that governments, throughout the 1990s, should have mounted a concerted effort, rather than enforcing the destructive application of eviction orders which perpetuated the historic injustices meted out to Aboriginal people in Western Australia and which led to claims that Homeswest engaged, at the very least, in indirect discrimination against its Aboriginal clientele.

REFERENCES

Aboriginal Affairs Department 1997 Government of Western Australia 1997 Implementation Report: Royal Commission into Aboriginal Deaths in Custody, Government of Western Australia, Perth.

Aboriginal Legal Service (ALS) 1995 Telling Our Story, Aboriginal Legal Service of Western Australia, Perth.

Anti-Section 64 Coalition 1995 No Just Cause: Homeswest Abuse of Western Australian Eviction Laws (no publisher).

Beresford, Q. and P. Omaji 1998 Our State of Mind: Racial Planning and the Stolen Generations, Fremantle Arts Centre Press, Fremantle.

Department of Native Welfare 1957 Annual Report, Votes and Proceedings of the Legislative Assembly, vol. 3, Department of Native Welfare, Perth.

-- 1967 A Place in the Sun, Department of Native Welfare, Perth.

Equal Opportunity Tribunal of Western Australia 1991 Alone v. State Housing Commission, August, no. 6 of 1990.

House of Representatives Standing Committee on Aboriginal Affairs (HRSCAA) 1975 Aboriginal Health in the South West of Western Australia, Australian Government Publishing Service, Canberra.

House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HRSCATSIA) 1992 Report of the Inquiry into the Needs of Urban Dwelling Aboriginal and Torres Strait Islander People, Australian Government Publishing Service, Canberra.

Human Rights and Equal Opportunity Commission (HREOC) 1997 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney.

Mangurie/WACSS 1994 The Right To Do Aboriginal Values in the Design and Delivery of Services, WA Council of Social Services, Perth.

McGlade, H. and J. Purdy 1998 From Theory to Practice: Or What is a Homeless Yamatji Grandmother Anyway? Joan Martin V Homeswest, Australian Feminist Law Journal 11,137-55.

Royal Commission into Aboriginal Affairs 1974, unpublished, copy available in Alexander Library, Perth.

Schapper, H. 1970 Aboriginal Advancement to Integration: Conditions and Plans for Western Australia, Australian National University Press, Canberra.

Shelter WA 1996 Evictions Report: A Report into the Exploration of Early Support Strategies in Working towards a Reduction in Public Housing Evictions, Shelter WA Inc., Perth.

-- 1997 Newsletter, Winter.

Supreme Court of Western Australia 1998 Martin v. State Housing Commission, February, Library no. 980122.

Task Force on Aboriginal Social Justice 1994 Report of the Task Force, Government of Western Australia, Perth. 1936, vol. 97.

Quentin Beresford
Edith Cowan University, Perth