Contemporary issue: discrimination in securing shelter: HSC Legal Studies

What this dot point is asking

Discrimination is one of the four contemporary issues that must be studied in the Shelter option of the Legal Studies Stage 6 Syllabus (2009). You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses to it.

It was examined in 2023, when Question 30(a) paired it with homelessness: "To what extent do legal responses relating to shelter address discrimination and homelessness?". NESA's feedback praised answers that linked discrimination to the Residential Tenancies Act 2010 (NSW), noting that no-grounds evictions made discrimination hard to prove, and asked students to focus on legal responses rather than statistics or description.

The answer

Identifying the issue

Where it happens:

• Private rental selection. Agents and landlords often receive many applications and choose without giving reasons. The Australian Housing and Urban Research Institute (AHURI Final Report 363, 2021) found discrimination is "a key issue in the private rental market", often subtle: minority applicants may be asked for more information, told a property is no longer available, or treated less courteously. It described "statistical discrimination", choosing tenants by stereotypes about which groups are risky.
• During and at the end of tenancies. Harassment, refusal of repairs, higher rent and eviction.
• Shared living. Strata by-laws and boarding house rules that exclude people with disability or assistance animals.
• Buying and building. Housing that is not accessible to people with disability.

Who is affected (AHURI, 2021): Aboriginal and Torres Strait Islander people; established ethnic minorities, especially non-white Australians; new migrants and refugees; low-income households; young people and students; single parents; older people; victim-survivors of domestic violence; and LGBTIQ people. Discrimination is intersectional: an Aboriginal single mother on income support faces several barriers at once.

Complaints are rare. Anti-Discrimination NSW received 1,945 complaints in 2024-25, but only 100 (5.1 per cent) concerned accommodation, most about disability (46), race (20) and victimisation (17). The low number reflects how hard rental discrimination is to detect and prove, not its rarity.

Legal responses: anti-discrimination law

The Anti-Discrimination Act 1977 (NSW) makes it unlawful for a person, whether as principal or agent, to discriminate in accommodation on grounds including race, sex (including pregnancy and breastfeeding), marital or domestic status, disability, homosexuality, transgender status and age: by refusing an application, offering worse terms, denying access to benefits, evicting, or subjecting the person to any other detriment. Sexual harassment and victimisation are also prohibited. Complaints go to Anti-Discrimination NSW, which conciliates; unresolved complaints can go to NCAT, which can award damages and order the respondent to stop.

Federal law gives parallel protection: the Racial Discrimination Act 1975 (s 12, land, housing and accommodation), Sex Discrimination Act 1984, Disability Discrimination Act 1992 (s 25, accommodation, including refusing a person with an assistance animal) and Age Discrimination Act 2004. Complaints go to the Australian Human Rights Commission, then the federal courts. These Acts implement Australia's obligations under CERD (art 5(e)(iii), equal enjoyment of the right to housing) and the CRPD.

Gaps in the law:

• Lawful discrimination. Much common rental disadvantage is not unlawful: refusing people on income support or low incomes, people with pets (apart from assistance animals) and, in NSW, families with children (carer's responsibilities are protected only in employment). The Tenants' Union describes this as the gap between unlawful and lawful discrimination.
• Exceptions. Anti-discrimination laws generally do not apply to shared accommodation where the accommodator or a relative lives on the premises with only a few others.
• Proof. The complainant must prove the reason for their treatment, which is almost impossible when an agent simply chooses another applicant.
• An old NSW Act. The NSW Law Reform Commission is reviewing the Act; its first consultation paper (20 May 2025) dealt with unlawful conduct, including the protected attributes and areas of public life, a second paper (24 July 2026) dealt with complaint procedures and remedies, and no final report had been released by September 2026.

Legal responses: tenancy law and housing policy

Because complaints law struggles, tenancy law and housing policy often do more:

• Reasonable grounds for eviction (19 May 2025). Before the reforms, a landlord could end many tenancies with no reason, so a discriminatory or retaliatory eviction could be disguised, a point NESA's 2023 feedback specifically rewarded. Now the landlord must give a lawful ground and evidence, and NCAT can set aside a notice that is not genuine or is retaliatory.
• Pets (19 May 2025). Blanket "no pets" rules are gone; landlords can refuse only on permitted grounds, and consent is deemed after 21 days. Assistance animals are separately protected under disability discrimination law.
• Tenancy databases. The Residential Tenancies Act regulates "blacklists": a landlord or agent can list a tenant only for specified reasons, must notify them, and must remove outdated or inaccurate listings.
• Domestic violence. Victim-survivors can end a tenancy immediately, without penalty, by giving a DV termination notice with evidence.
• Application information. The Residential Tenancies Amendment (Protection of Personal Information) Bill 2025, introduced in June 2025 and passed by Parliament on 24 September 2026, requires a standard rental application form and stops landlords and agents asking for unnecessary details such as personal photos, social media accounts or details about applicants' children. The new laws are expected to start in early 2027, and should reduce opportunities for discrimination.
• Special measures. Social housing allocations prioritise people escaping domestic violence and people experiencing homelessness, and the Aboriginal Housing Office provides housing for Aboriginal people; these are lawful special measures to overcome disadvantage. NCAT's Aboriginal Tenancy List makes the tribunal more accessible.
• Accessible housing. The 2022 National Construction Code introduced minimum accessibility standards for new homes (the Livable Housing Design Standard), but NSW opted out, relying on planning guidance and council requirements, which disability advocates criticise as leaving people with disability with few accessible homes to rent or buy.

Non-legal responses

• The Tenants' Union of NSW and Tenants' Advice and Advocacy Services publish guidance on discrimination and help renters make complaints.
• Research by AHURI and universities documents the problem and informs reform.
• Advocacy by First Nations, disability and multicultural organisations pushes for reform of the NSW Act and accessible housing standards.
• Industry education: agents' training and codes of conduct under the Property and Stock Agents Act 2002 (NSW).
• The media exposes blatant cases, such as advertisements that exclude groups.

Evaluating the effectiveness of legal and non-legal responses

Judgement. Legal responses address discrimination in shelter only to a limited extent. The law clearly prohibits the most serious forms, and NSW tenancy reforms since 2025 have made discriminatory evictions harder to disguise. But a complaints-based model works badly in a competitive rental market where rejected applicants never learn why, and much disadvantage is lawful. The most effective responses are structural: requiring reasons for eviction, limiting what information agents can collect, increasing social housing and building accessible homes, rather than relying on individual complaints.

In one sentence

Discrimination keeps many Aboriginal, migrant, disabled, young, low-income and single-parent households out of secure shelter, and although NSW and federal law prohibit discrimination in accommodation and the 2025 tenancy reforms make discriminatory evictions harder to hide, the complaints-based model, lawful exclusions and weak accessibility standards mean the law addresses the issue only to a limited extent.

Try this

Q1. Identify TWO groups that face discrimination in the rental market and outline how. (4 marks)

• What the marker wants. Two groups with specific forms of discrimination (for example, Aboriginal applicants told a property is unavailable; people with disability refused modifications).

Q2. Explain how the end of no-grounds evictions affects discrimination against tenants. (5 marks)

• What the marker wants. The pre-2025 position, the new grounds and evidence requirements, retaliation challenges at NCAT, and a limit.

Q3. Assess the effectiveness of anti-discrimination law in protecting people seeking shelter. (8 marks)

• What the marker wants. State and federal Acts, complaint processes and data, lawful discrimination and proof problems, and a judgement.