An Aboriginal man who alleges his eviction from public housing in Western Australia is racial discrimination has been granted an injunction in the federal court, allowing him to stay at the property while he takes his complaint to the Australian Human Rights Commission.
John Abraham, a Noongar man, made a complaint to the Human Rights Commission against the WA Housing Authority in August after he received a “without grounds” termination notice, commonly called a no-grounds eviction notice. It requested he leave the public housing property he has lived in since 2020, the court heard on Friday.
According to affidavits, Abraham had initially received the three-bedroom property in suburban Perth on the understanding he would live in it with his two nephews. He was given a six-month fixed-term lease in January 2020, which was extended four times, for another six months each time.
Since he moved in, due to cultural obligations and the desire to look after his family, Abraham allowed other family members to live with him when they would otherwise be homeless. As many as 20 people were living with him at times this year.
The main catalyst of this was Abraham’s parents’ own no-grounds eviction from their community housing residence in March. In their early 70s and in ill health, at the time of their eviction Barbara and Elder Abraham were caring for at least seven of their grandchildren and great-grandchildren, aged between 11 and 20. The household was evicted into homelessness, and so went to stay with Abraham.
Just prior to the expiry of his fifth sequential fixed-term lease, the Housing Authority sent Abraham a “without grounds” termination notice, ordering him to leave the premises by 22 July.
The eviction of Abraham would push himself, his parents, some of his adult siblings, and seven children in the family back into homelessness, the affidavits said.
Periodic, or ongoing, leases are the most common form of lease used by the Housing Authority. They can be terminated, but the law requires the landlord to provide a justifiable reason, and, if it gets to the magistrates court, the court must take into account the effect the eviction would have on the tenants, including children.
A fixed-term tenancy, however, can be terminated “without grounds”, which means the landlord does not have to allege or prove that the tenant has breached the lease agreement or the Housing Authority’s policies. As a consequence, they are nearly impossible for the tenant to challenge and almost entirely discretionary in practice.
Abraham’s complaint to the HRC will allege the WA Housing Authority disproportionately uses fixed-term leases and no-grounds evictions against Aboriginal public housing tenants, allowing them to avoid having to prove that the tenant breached the lease agreement.
Before the hearing, the WA Department of Communities had not released data showing what proportion of WA public housing tenants were Aboriginal and Torres Strait Islander, or what proportion had received no-grounds eviction notices, saying in the past that to release such data could increase stigma.
After the federal court hearing, the department responded to an earlier request from Guardian Australia, providing figures showing that 16,142 or 25.91% of the 62,295 tenants in the public housing system identified as Aboriginal or Torres Strait Islander. Aboriginal and Torres Strait Islander people make up 3.3% of the population of WA. It is optional to include that identifying information on applications for public housing, so the recorded numbers could underrepresent the actual percentage.
The department said 654 of the 1,119 public housing tenancies on fixed-term agreements at the end of the last financial year – just over 58% – were households that included Aboriginal or Torres Strait Islander people. The department said it was unable to provide a breakdown of fixed-term tenancy terminations by type as the data was not recorded that way, but that last financial year, 111 public housing tenancy terminations were recorded under category “other”, which includes “fixed term agreements not being renewed”.
The court heard on Friday that data from Circle Green Community Legal centre, formerly Tenancy WA, showed just over 30% of its public housing clients assisted with eviction matters since 2014 identified as Aboriginal or Torres-Strait Islander, the court heard.
Circle Green indicated this was most likely an underestimate of the prevalence of the issue, as Aboriginal tenants were more likely to seek assistance from specialist Aboriginal Housing service, Day Dawn Advocacy. Guardian Australia understands that Day Dawn Advocacy’s data shows similar trends.
Housing advocates in WA have argued the lack of protection from eviction in the public housing system, among other barriers such as debt, coupled with the cultural responsibility of Aboriginal people to house members of their extended family when in need, entrenches the cycle of overcrowding and homelessness experienced by Indigenous Australians.
The Housing Authority had applied to the WA magistrates court for termination of Abraham’s lease and vacant possession orders for the property. The case was due to be heard this week.
Abraham sought the injunction from the federal court to prevent that case from going ahead until his complaint had been heard by the Human Rights Commission.
A spokesperson for the WA Department of Communities told Guardian Australia: “As the matters raised are currently before both the Australian Human Rights Commission and the courts it is not appropriate for the department of communities to comment further.”
