Inquiry into International Student Accommodation in New South Wales (2011)
Legal
Inquiry into International Student Accommodation in New South
Wales
Australian Human Rights Commission Submission to the Social Policy
Committee of the NSW Legislative Assembly in its Inquiry into International
Student Accommodation in New South Wales.
17 October 2011
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Table
of contents
3. The DRAFT Minimum Standards for International Student Safety and Well
Being
4. The appropriateness of existing standards for International Student
accommodation
1. Introduction
-
The Australian Human Rights Commission welcomes the opportunity to submit
comments to the Social Policy Committee of the NSW Legislative Assembly in its
Inquiry into International Student Accommodation in New South Wales. The
Commission is established by the Australian Human Rights Commission Act
1986 (Cth) and is Australia’s national human rights institution. -
The Commission commends the New South Wales Parliament for initiating this
Inquiry. Issues relating to the safety and well-being of International Students
in Australia are enormously complex, necessitating the active engagement and
cooperation of not only the Australian Government and State and Territory
Governments, but also between education providers, employers, and a broad range
of service providers. -
In the Commission’s experience, the interests and concerns of
International Students too often fall between the cracks of competing government
jurisdictions, education providers and other service providers. -
The Commission is pleased to highlight some issues relating to
International Student accommodation that may be helpful for the Committee to
consider during this Inquiry. These comments draw on the extensive work the
Commission has undertaken in relation to International Students residing in
Australia. - Specifically, these comments draw on the Commission’s work in
developing the DRAFT Minimum Standards for International Student Safety and
Well Being. This work has been done through consultation with International
Students and their representative bodies, various levels of the education and
training sector and other agencies associated with the interests of
International Students including law enforcement, welfare, state emergency
services and state government representatives. While the Commission’s work
necessarily focuses on international and national laws rather than NSW
legislation, many of the concepts explored in developing the DRAFT Minimum
Standards are applicable across jurisdictions.
2. Summary
-
International Students form a significant population set and may live in
Australian communities for a lengthy period of time, depending on the duration
of their education program(s). International Students, individually and
collectively, make significant contributions to Australian society. -
The Commission considers that International Students are young people who
have the right to both make choices about their education and lives while they
are in Australia, and the right to exercise their own values and beliefs in a
manner that is consistent with the domestic laws of Australia and international
law. -
Safe, clean, convenient and affordable housing is essential for
International Students to feel a sense of belonging and feel safe, have a place
which they can call home and enable them to focus on their educational and other
pursuits. -
Similar to other temporary migrants, International Students can experience
considerable difficulties and vulnerabilities due to their absence from their
country of origin. For example, economic insecurity, social isolation, language
barriers and culture shock. -
The Commission’s consultations have revealed that International
Students may also experience direct and indirect discrimination, exploitation,
and/or be disadvantaged due to their race, temporary migrant status, culture,
religion, language or other grounds. This can occur not only in relation to
accessing safe and affordable accommodation; in our experience International
Students also regularly face discrimination by health providers, migration
agents and employers on a range of grounds.
3. The DRAFT Minimum Standards for International Student Safety and Well
Being
-
The proposal for the development of Minimum Standards for International
Student Safety and Well Being was initiated by the Commission, in
partnership with student representatives and academics working in the tertiary
sector, who identified the need to ensure that human rights considerations would
inform appropriate and relevant responses to the needs of International Students
following reports of violence, racial attacks and welfare concerns, particularly
in eastern states. -
Over the past 18 months, the Commission has been developing the DRAFT Minimum Standards in close consultation with International
Students and with stakeholders including Universities Australia, the National
Union of Students, the Council of Australian Postgraduate Associations, the
Council of International Students Australia and International Student service
providers. -
There has also been significant input from decision makers and regulators,
with the Commonwealth Department of Education, Employment and Workplace
Relations (DEEWR) recently coordinating whole of government feedback on the
draft document. -
Underpinning the DRAFT Minimum Standards are the principles of
non-discrimination in relation to the rights of domestic and International
Students and equality between domestic and International Students in Australia. -
The DRAFT Minimum Standards set out the core human
rights of International Students studying in Australia and the minimum
responsibilities of Government and private education providers in order to
provide for these rights.
-
The DRAFT Minimum Standards are based on international human rights
standards including:-
the Convention on the Elimination of Racial Discrimination (CERD)
-
the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) -
the International Covenant on Civil and Political Rights
(ICCPR) -
the International Covenant on Economic, Social and Cultural Rights
(ICESCR)[1]
-
-
The DRAFT Minimum Standards also consider relevant, existing domestic
legislation.[2] -
In their current form the DRAFT Minimum Standards include the
following thematic areas: consumer rights and quality education, health and
safety, accommodation, employment, transport, immigration, and information and
privacy. -
The DRAFT Minimum Standards are currently confidential. The
Commission anticipates that the DRAFT Minimum Standards will be available
for wider public comment once the Commission has incorporated feedback from
Commonwealth agencies, and completed internal review and approval processes. - The Commission would be happy to provide the Social Policy Committee with a
copy of the DRAFT Minimum Standards at that
time.
4 The appropriateness of existing standards for
International Student accommodation
-
In the Commission’s experience, International Students in Australia
live in a variety of accommodation including:-
on and off-campus accommodation;
-
home stays;
-
private rental housing; and
-
'rooming' houses where individual rooms of a house are rented out to
students.
-
- While discrimination in the provision of accommodation to International
Students exists a key issue consistently raised with the Commission by
International Students is the lack of affordable and safe accommodation. To this
end, the Commission suggests that a key issue for the Committee to consider is
how the availability of affordable and safe on and off-campus accommodation
options to all students can be expanded.
4.1 Residential
Tenancies Act 2010
- The Commission considers that all student accommodation services (on and
off campus) should be subject to the same consumer protection as other standard
rental accommodation under the relevant state or territory Residential Tenancies
Act. -
In NSW, most residential tenancies in NSW are covered by the Residential
Tenancies Act 2010 (the NSW Act) and Regulations. The Act and Regulations set
out a standard residential tenancy agreement that gives rights and obligations
to landlords and tenants, and provides the Consumer, Trader and Tenancy Tribunal
(CTTT) with power to hear and settle disputes about residential tenancies,
including bond disputes. -
The Commission considers that consumer protections in the NSW Act, as well
as the provisions of the Anti-Discrimination Act 1977 (the ADA), discussed
further below, must be robustly upheld so that International Students are able
to enjoy the same tenancy protections as domestic students and other prospective
renters. -
For example,
-
International Students should not be subject to any additional rental
related costs or conditions beyond what is required under the NSW Act. -
International Students should not be disadvantaged based on their temporary
status, including but not limited to, an absence of, or limited tenancy history
or proof of income.
-
-
The Commission recognises that on occasions there are practical impediments
faced by International Students in accessing the existing protections of the NSW
Act. To that end the Commission recommends measures that may practically assist
International Students in accessing and maintaining appropriate and safe
accommodation. For example:-
International documents or letters from education providers confirming they
are students should be acceptable forms of proof of identity and financial
standing as they provide verification that International Students have satisfied
minimum requirements to support themselves in Australia. -
Education providers should provide a template document as proof of enrolment
within five days of request from International Students to support rental
applications.
-
-
While the NSW Act provides a range of consumer protections to parties to a
standard residential tenancy agreement, the NSW Act excludes specific types of
premises and types of agreement from its coverage. The NSW Act is not applicable
to accommodation arrangements in serviced apartments, hotels, motels and
backpackers hostels or residential colleges in educational institutions (with
some exceptions), often used by International Students. -
Nor does the NSW Act cover agreements under which a person boards or lodges
with another person (e.g. boarding or lodging in a private home) or
share-housing arrangements where a person sub-lets part of a premises to another
without a written tenancy agreement. Again, these arrangements are commonly used
by International Students. -
International Students living in these premises or arrangements effectively
fall between the existing regulatory frameworks, and do not have access to the
same consumer protections, enforceable by law, as associated with standard
residential tenancy agreements. -
The Commission considers that greater regulation of boarding and lodging
agreements and home stay arrangements is required in order to ensure
International Students living in these premises or arrangements have access to
the same consumer protections as other standard rental accommodation. -
The Commission acknowledges the complexity around these issues, and
suggests that they require attention within a national policy framework, where
it can be more clearly determined who has responsibility for better regulating
those types of accommodation regularly utilised by International Students. -
There may, however, be particular issues that the Committee
can consider within the New South Wales jurisdiction. The following
points are not exhaustive but reflect the Commission’s consultations with
International Students and may be of assistance in the Committee’s
deliberations.-
The Commission is supportive of the development of a national home stay
compliance management system – including an accreditation/national
registration process, a Code of Conduct, a system of random on-site inspections
and a formal complaints mechanism – to enhance protections for
International Students using these services. -
The Commission is of the view that home stay fees should be capped and
properly regulated, and that fees charged by all parties, including
administration fees imposed by the education providers, should be disclosed to
all parties. -
The Commission believes that International Student tenants living in
boarding houses should be provided with greater information and understanding
about their responsibilities within the accommodation. While this could take the
form of boarding house managers providing a set of house rules in plain English
format, which clearly sets out responsibilities in relation to cleaning, payment
of utilities etc., the key questions are how this information would be provided,
and who would regulate it? -
Issues of safety for International Students have also been raised in our
consultations, and to this end the measures that are listed above may also
address concerns which impact directly on female International Students and the
reports of prevalence of sexual assault and sexual harassment suffered by some
International Students in their efforts to access accommodation. In some cases,
the offer of accommodation has been contingent on the willingness to of
International Students to provide sexual favours. -
The Commission considers that procedures need to be developed to avoid
situations where International Students are living in overcrowded and unsafe
accommodation. One way this may be addressed is for education providers to
monitor their enrolment registration systems. When they become aware that a
disproportionately high number of International Students are living at one
residential address, administrators could be obligated to investigate the
circumstances of the accommodation and, where necessary, provide assistance in
finding suitable accommodation alternatives.
-
4.2
Anti-Discrimination Act 1977
- In NSW, the Anti-Discrimination Act 1977 (the ADA) imposes more specific
requirements on principals and agents in the provision of accommodation than the
corresponding Commonwealth anti-discrimination provisions. Despite this detail,
there are a number of provisions in the ADA which could be viewed through the
lens of the International Student experience. -
Section 4 defines accommodation as including “residential or business
accommodation”. The Committee may wish to turn its mind as to whether the
broad drafting of this definition provides sufficient protections for a
particular disadvantaged group, in this case International Students. The
Commission considers that a definition of accommodation that covered all forms
of accommodation utilised by International Students may provide a tool for
addressing the challenges they face in the accommodation market. -
In substantially similar terms, the NSW Act provides that it is unlawful for
a person, whether as principal or agent, to discriminate against another person
on the grounds of race (section 20), sex (section 34), marital or domestic
status (section 48), disability (section 49N), homosexuality (section 49ZQ), age
(section 49ZYO) or transgender grounds (section 38N) in relation to:-
refusing the person's application for accommodation
-
the terms on which the person is offered accommodation
-
deferring the person's application for accommodation or according the person
a lower order of precedence in any list of applicants for that
accommodation -
denying the person access, or limiting the person's access, to any benefit
associated with accommodation occupied by the person -
evicting the person or subjecting the person to any other
detriment.
-
-
In the Commission’s experience, each of these areas listed in the ADA
are relevant to the experience of International Students, and have been
repeatedly reflected in the Commission’s consultations with them. In
particular the conditions on which accommodation is offered – notably,
rental payments, commission payments and the number of persons accommodated in
particular premises – are central to many of the stories the Commission
has heard. -
These provisions in the ADA explicitly do not apply if the person who
provides or proposes to provide the accommodation or a near relative of that
person resides, and intends to continue to reside, on those premises, and the
accommodation provided in those premises is for no more than 6 persons. In the
Commission’s view, this exemption, found in all of the accommodation
provisions in the ADA, provides a potential loophole for exploitation by persons
who are living in a residence and using another part of the premises to
accommodate International Students. In this scenario, the Commission is
concerned that conditions and costs associated with accommodation covered by
this exemption remain appropriate and fair. -
Section 22G of the ADA provides that it is unlawful for a person to
sexually harass another person in the course of providing, or offering to
provide, (whether as principal or agent) accommodation to that other person. The
Commission strongly supports this provision. However, subsection 22G(2) provides
an exemption, stating that “This section does not apply to anything done
by a person in the course of providing, or offering to provide, accommodation in
a private household.” - One of the issues of great concern to the Commission in its consultations
has been the prevalence of sexual assault and sexual harassment suffered by some
International Students in their efforts to access accommodation. The Commission
appreciates the careful balance that this section seeks to address, but draws to
the Committee’s attention the potential exploitation of International
Students this exemption may allow as currently
drafted.
[1] The right to adequate housing
is well-established in international law, including Article 11 of the ICESCR
which refers to an adequate standard of living and the right to adequate
housing. In accordance with the Committee on Economic, Social and Cultural
Rights General Comment Number 4 (Article 11) on Adequate Housing, housing
options for International Students must be affordable, habitable, allow
reasonable access to employment options, health care facilities, social
facilities and be culturally adequate. Article 11 notes that the time and
financial costs of transport can place excessive stress on who already have very
little economic security.
[2] For
example, section 12 of the Commonwealth Racial Discrimination Act 1975 makes it
unlawful for real estate agents to treat International Students less favourably
than other rental applicants/tenants in similar circumstances, based on their
race, colour, or national or ethnic origin.