Discrimination in property sales - the obligation stands

The Anti-Discrimination Act 1991 (Qld) (the Act) sets out an extensive set of obligations which apply to real estate agents in their capacity as accommodation providers.

Whilst it is common knowledge that property managers must not engage in discriminatory conduct; these obligations likely apply to sales agents in a similar fashion.

Complaints to the Queensland Human Rights Commission can be made against individuals, including real estate agents and/or the agent’s employer, as well as corporations.

A real estate agent and/or their employer cannot avoid liability for a discrimination complaint based solely on the fact that they were not aware of the unlawful discrimination, nor are they protected by acting only on their client’s instructions. That is, the motive of a person engaging in discriminatory action is irrelevant.[1]

It is well established that sales agents have a duty to act on the instructions of their seller clients, provided that those instructions are lawful. However, where those instructions may be discriminatory, agents should advise their seller clients to seek legal advice prior to acting on those instructions. Further, agents should consider the risks of continuing to act on unlawful instructions, given their personal exposure to potential discrimination claims.

Discrimination on the basis of an attribute

Pursuant to section 8 of the Act, discrimination on the basis of an attribute includes direct or indirect discrimination on the basis of:

1. a characteristic that a person with any of the attributes generally has; or
2. a characteristic that is often imputed to a person with any of the attributes; or
3. an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
4. an attribute that a person had, even if the person did not have it at the time of the discrimination.

Direct discrimination will occur if an agent treats a person less favourably than others because of a protected attribute.

Indirect discrimination may be established if an agent applies a policy or requirement which places one or more person(s) with a protected attribute at a disadvantage when compared to others who do not possess the protected attribute (e.g., if an agent seeks to deter a buyer from bidding at an auction of a property for reasons of the buyer having a protected attribute).

Therefore, some protected attributes to consider may be a person’s age, sex, race, sexuality, religion, disability, or parental status, among others.[2]

Advertising property

Pursuant to section 127 of the Act, a person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act. A breach of section 127 may amount in fines of up to $5,418 for an individual or $26,316 for a corporation.

In these circumstances, property managers and sales agents should take care in the drafting and publishing of advertisements so as not to exclude people with particular attributes.

For instance, despite instructions from a client, it may not be advisable to advertise a property as being ‘family friendly’ or suitable for a class of persons with specific attributes, as this may impliedly exclude certain people from applying or enquiring about the availability of a property.

Fielding offers

In multiple offer scenarios, it may become apparent to a sales agent that there are unique differences between each potential buyer, for example, one offer may be fielded from a young first home buyer, one may be from a single parent, and one may be from a dual income couple.

Sales agents should take care in dealing with multiple offer scenarios where recommending the acceptance of an offer to a seller client may result in unlawful discrimination.

Just as property managers are entitled to select the most appropriate tenant for a property, sales agents should take care to put forward all offers to their clients which are appropriate. No further direction should be provided to sellers which might result in a decision to sell the property being based on a protected attribute of the buyer.

Further, sales agents should take care when acting on their client’s instructions in relation to the selection of an appropriate offer. Where a decision to sell a property to a certain buyer to the exclusion of another may be based on unlawful discrimination, an agent may be vicariously liable for such action, whether or not it was their intention to proceed on that basis.

Best practice advice

All real estate agents should take care to comply with the Anti-Discrimination Act 1991 (Qld) when conducting their business.

It is apparent that acting on a client’s instructions is not a defence to unlawful discrimination, and an agent may be personally liable for any breach of the Act, despite their good intentions.

If instructions are provided which may discriminate against a person based on a protected attribute, including their age, sex, race or parental status, agents should direct their clients to seek legal advice, and act only on lawful instructions.

If an agent is aware of instructions from a seller client which may amount to unlawful discrimination, they should proactively attempt to prevent any discrimination from occurring, and seek urgent legal advice.