Charter of Human Rights and Responsibilities Act
Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”), arguments can be raised about a tenant’s or resident’s 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 arguments may be raised in a variety of forums and before various people, including:
• 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 Charter Act can be used to assist tenants or residents with housing issues, pursuant to:
• the requirement for interpretations of statutory provisions to be compatible with human rights (s 32);
• the direct obligation on public authorities to consider and act compatibly with human rights (s 38).
In Momcilovic v The Queen  HCA 34, the High Court 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 that 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).
The direct obligation of 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 (see Metro West v Sudi (Residential Tenancies)  VCAT 2025).
The case of Director of Housing v Sudi  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, Justice Bell 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 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 (see Giotopoulos v Director of Housing  VSC 20).
In Goode v Common Equity Housing Ltd (Human Rights)  VCAT 93 (21 January 2016), the VCAT member observed that:
The provision of social housing and the prevention of homelessness is a function of government of fundamental importance. It is not at the margins but at the centre of what the community generally expects governments to do. While the methods of provid[ing] social housing … may vary, there is a strong public interest in the government making necessary arrangements for this to be done.
Accordingly, VCAT affirmed that “the definition of ‘public authority’ must be given a wide and generous interpretation” and determined that “the functions being exercised by Common Equity Limited are functions of a public nature”. VCAT went on to state that a public function is one that “is connected to or generally identified with functions of government … and is being performed in the broader public interest”. (See also AVW v Nadrasca Ltd (Residential Tenancies)  VCAT 1462 (13 September 2017).)
This decision does not mean all social housing providers are bound by the Charter, but it provides a strong foundation to argue that most government-supported social housing providers should be bound by the Charter (s 38) and act accordingly. A failure to do so may render them subject to judicial intervention on application by an aggrieved tenant or resident.
In Durney v Unison Housing Ltd  VSC 6 (8 February 2019), the Supreme Court further examined the question of what types of decisions are amenable to judicial review and when public law remedies can be granted against private bodies such as community housing. The court narrowly construed when a public duty or function involves a “public element”. This public element test was measured against the exercise of an identifiable statutory power and whether such an exercise was in the course of performing a public duty. The court considered the public element to include procedural fairness as a relevant interest if the exercise of that power was “capable of having an adverse effect on legally recognised rights or interest”. In this matter, the applicant was unsuccessful because the relevant Notice to Vacate was already withdrawn and the community housing provider was found to be reasonable in requiring contact by certain means that did not remove his other relevant public rights.
In Burgess v Director of Housing  VSC 648 (17 December 2014) (“Burgess case”), the court determined that there are two decisions to be made when a public authority seeks to evict a person. Both decisions require proper consideration of the Charter rights of the tenant and any other members of the household (e.g. children). This 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 (once VCAT grants a possession order) is the 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 before 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 until the time the warrant was executed to intervene and ultimately set aside the entitlement to possession or remit the matter for rehearing.
Decisions should demonstrate the factors that the decision-maker took into account to demonstrate that the relevant Charter rights were properly considered for the parties affected by the eviction. 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 the Burgess case, they should seek legal advice immeiately and ensure that all internal appeal avenues have been explored.