It is unlawful for public authorities to act in a way that is incompatible with a human right, or, in making a decision, to fail to give proper consideration to a relevant human right (s.38 of the Charter). The VCAT has jurisdiction to examine the conduct or decisions of public authorities. If VCAT finds that a decision was made without proper consideration of an individual's human rights, or the conduct is incompatible with a human right (and not justified), then an application to VCAT based on that decision will be unlawful and the application will be invalid (see: Director of Housing v Sudi [2010] VCAT 328).

The Director of Housing is a public authority for the purposes of the Charter. Private bodies may also be considered "public authorities" for purposes of the Charter when they are "an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise" (s.4(1)(c)). Social housing providers, who are exercising functions of a public nature on behalf of the community in the public interest, through government funding, will be considered public authorities and be required to act compatibly with the Charter (refer to Metro West v Sudi [2009] VCAT 2025 for Justice Bell's outline of whether a transitional or community housing provider will be considered a public authority and bound by the Charter).

When tenants or residents are facing eviction from their home by the Director of Housing or a social housing provider, VCAT has jurisdiction (and the obligation when raised) to examine the impact of those decisions on the tenant's human right not to have their home or family unlawfully or arbitrarily interfered with. If the tenant asserts that a decision of the public authority landlord did so interfere, then the landlord must provide convincing evidence to justify that decision. If they cannot, the decision and any resulting application will be unlawful and invalid.

Courts and tribunals are exempt from the definition of "public authority" except when acting in an administrative capacity. The law surrounding this definition is far from settled. It is clear that purely administrative processes such as listing cases or issuing warrants are examples of a tribunal acting administratively. However, the former president of the VCAT, Justice Bell, held that the VCAT is acting in an administrative capacity and is therefore bound by section 38 of the Charter when considering applications for creation of a tenancy agreement.   

The Charter requires VCAT to interpret legislation compatibly with human rights, so far as it is possible to do so compatibly with the purpose of the provision (s.32). The human rights that have the potential to be limited through application of tenancy law are:

Section 32 of the Charter is a statutory directive that requires all persons engaged in the task of statutory interpretation to explore all "possible" interpretations of the provision in question, and adopt the interpretation which least infringes Charter rights (R v Momcilovic [2010] VSCA 50). Section 32 does not permit the court or VCAT to adopt an interpretation that is inconsistent with the purpose of the section. 

When it is contended that a statutory provision infringes a Charter right, the court or tribunal must:

Factors the court or tribunal will consider when looking at whether the impact can be justified are (s.7):

In short, the tribunal (or court) is now required to interpret provisions in a manner that impacts on an individual's rights as little as possible, whilst still giving effect to the purpose of the section. This is generally achieved by reading down or reading words into the statutory provision in question.