Tenancy and human rights

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Human rights issues relating to tenants include the right to equality before the law, the right to privacy and the protection of children and the family unit.

Charter of Human Rights and Responsibilities Act

With the enactment of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”), it is now possible to raise arguments about a tenant’s or resident’s human rights.

Relevant human rights

The Charter Act sets out the human rights that the Victorian Parliament specifically seeks to protect and promote. Human rights in the Charter Act relevant to tenants and residents include:

the right to recognition and equality before the law (s 8);

the right of a person to not have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with (s 13);

the protection of families as the fundamental group unit of society (s 17(1));

the right of every child, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child (s 17(2)); and

the right to a fair hearing (s 24).

Human rights advocacy

Human rights arguments may be raised in a variety of forums and before various people, including:

VCAT;

the Supreme Court of Victoria;

the Victorian Ombudsman;

the original decision maker (public housing);

by way of internal review (public housing); and

by way of independent appeals (public housing).

The two main ways in which the Charter Act can be used to assist tenants or residents with housing issues are pursuant to:

the requirement to interpret statutory provisions in a way that is compatible with human rights (s 32); and

the direct obligation on public authorities to consider and act compatibly with human rights (s 38).

In Momcilovic v The Queen [2011] HCA 34, the High Court of Australia held that section 32 of the Charter Act does not require or allow courts to depart from established principles of statutory interpretation (how legislation should be interpreted). Section 32 is not a special rule of statutory construction, and does not allow an interpretation which is inconsistent with the purpose of the particular provision. Section 7(2) of the Charter Act allows limitations to Charter Act rights when they are “demonstrably justified” in accordance with that section. The High Court held that section 32 must be applied with reference to rights as limited in accordance with section 7(2).

Public authorities

The direct obligation on public authorities to consider and act compatibly with human rights applies to the Director of Housing, and extends to apply to other providers of social housing (Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025).

The direct obligation also applies to VCAT where it is acting in an administrative capacity; for example, when VCAT is exercising its residual discretion in a proceeding for creation of a tenancy agreement (Giotopoulos v Director of Housing [2011] VSC 20).

Director of Housing v Sudi [2011] VSCA 266 involved section 38 of the Charter Act, and specifically the obligations of the Director of Housing, when seeking to evict a public tenant from their home. At first instance, Bell J held that VCAT had jurisdiction to determine whether the Director had complied with section 38 in seeking eviction, and that VCAT could and must dismiss the application.

On appeal, the Court of Appeal held that VCAT had no jurisdiction in eviction proceedings to consider a public authority landlord’s compliance with the Charter Act. Only the Supreme Court has jurisdiction to determine Charter Act compliance, by way of proceedings for judicial review.

The decision to evict: two potential stages for judicial intervention

In Burgess v Director of Housing [2014] VSC 648 (17 December 2014), the court determined that there are two decisions to be made when a public authority seeks to evict a person. Both decision require proper consideration of the Charter rights in relation to the tenant and to any other members of the household (e.g. children). This consideration includes proper consideration of the health and the likely impact of the eviction on the individuals.

The first decision, which is reviewable by the Supreme Court, is the decision to issue the Notice to Vacate.

The second decision is (once a possession order is granted by VCAT) the persistent decision to purchase and allow the warrant to be executed against all the occupants of the household.

In relation to the first decision, the public authority should show proper consideration of the Charter, follow their own policy, and afford procedural fairness and natural justice to the people being directly affected by the Notice to Vacate. This may include an interview prior to the Notice to Vacate being served. Parties should record these interviews.

In the Burgess case the court determined that once VCAT had made the first decision (to grant a possession order in favour of the landlord), the court could no longer intervene against the decision to issue the Notice to Vacate as being lawful or not. However, it relation to the second decision, it was still open to the court up until the time the warrant was executed to intervene and ultimately set aside the entitlement to possession or remit the matter for rehearing.

In relation to the second decision, it is unclear from Burgess if an appeal can rely upon, or call into question, the same Charter question, administrative law principles, and policy considerations that the first decision maker demonstrated and relied upon, or whether a review of the second decision relies upon a change of circumstances or “show cause” type of test for the purpose of appeal. That is, it is unclear that if there was an error of law present in the first decision, but a possession order was granted by VCAT, whether the error in the first decision would be a relevant error that would contaminate and become fatal to the second decision.

In both cases, it is important that there is a proper, fair and transparent record of the decision. Decisions should demonstrate the factors that the decision maker took into account and included demonstrate that the relevant Charter rights have been properly considered in respect of the parties affected by the eviction. The access to such notes and record is critical to judicial intervention.

If a party is concerned about the lawfulness of the decision for the reasons set out in Burgess, it may be possible issue a summons at VCAT against a decision in relation to Burgess. It is not clear if VCAT would entertain such an application. It would be imperative to apply by way of summons during a hearing because an freedom of information request would not be returned in time before the warrant is would be executed, rendering a judicial intervention to be of no effect. Alternatively, parties must file in the Supreme Court without a clear understanding of the decision that has caused the eviction and risk the issues associated with costs of an appeal.

A summons for requesting all relevant documents to pursue alternative judicial intervention via the Supreme Court is potentially a purpose supported by the RTA in relation a tenant’s rights who are tenants of a public authority.

The remedy sought in the Supreme Court against an eviction in these circumstances is termed Burgess certiorari.