Tenancy

Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’), arguments can be raised about a renter’s or resident’s human rights.

Relevant human rights

The Human Rights Charter sets out the human rights that the Victorian Parliament specifically seeks to protect and to promote.

The rights in the Human Rights Charter that are relevant to renters and residents include:

• the right to recognition and equality before the law (s 8 Human Rights Charter);
• 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:

• 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 Human Rights Charter can be used to assist renters or residents with housing issues, pursuant to:

• the requirement for interpretations of statutory provisions to be compatible with human rights (s 32 Human Rights Charter);
• the direct obligation on public authorities to consider and act compatibly with human rights (s 38).

Public authorities – including the Director of Housing and arguably the providers of community housing – are required to consider and act compatibly with the human rights set out in the Human Rights Charter.

Note that in the case of Director of Housing v Sudi [2011] VSCA 266, the Court of Appeal held that VCAT had no jurisdiction in eviction proceedings to consider a public authority rental provider’s compliance with the Human Rights Charter. Only the Supreme Court has jurisdiction to determine compliance with the Human Rights Charter, by way of proceedings for judicial review.

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

In Goode v Common Equity Housing Ltd (Human Rights) [2016] VCAT 93 (21 January 2016), a 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) [2017] VCAT 1462 (13 September 2017).)

This decision does not mean all social housing providers are bound by the Human Rights Charter, but it provides a strong foundation to argue that most government-supported social housing providers should be bound by the Human Rights Charter (s 38) and act accordingly. A failure to do so may render them subject to judicial intervention on application by an aggrieved renter or resident.

However, in Durney v Unison Housing Ltd [2019] 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 their other relevant public rights.

In 2021, the Parliamentary Inquiry into Homelessness in Victoria made the following recommendations: community housing providers should be recognised as public authorities for the purpose of the Human Rights Charter (recommendation 32); VCAT should be given power to determine if evictions by social housing providers are compliant with the Human Rights Charter (recommendation 33); and a right to housing should be included in the Human Rights Charter (recommendation 34).

However, the issue of quasi-public authorities and administrative accountability remains a live issue and is referred to as the ‘datafin’ principle (see Vergara v Chartered Accountants ANZ [2021] VSC 34 (23 February 2021)).

In the case of Burgess v Director of Housing [2014] 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 renter 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 Human Rights 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 is 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 rental provider), the court could no longer intervene against the decision to issue the Notice to Vacate as being lawful or not.

However, in relation to the second decision, it was still open to the court until the time the warrant of possession was executed to intervene and ultimately set aside the entitlement to possession or remit the matter for rehearing.

Decisions should demonstrate that the decision-maker took into account the relevant Human Rights Charter rights for the parties affected by the eviction.

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 immediately and ensure that all internal appeal avenues have been explored.

In another relevant decision – Keasey v Director of Housing [2022] VSCA 7 (2 February 2022) – the court indicated that the director’s decision to seek a possession order was not reviewable under the Administrative Law Act 1978 (Vic). However, such a decision may still be subject to judicial review by the Supreme Court prior to the possession order being granted.

Reasonable and proportionate test and proper consideration

The ‘reasonable and proportionate’ test may allow renters more opportunity to examine and challenge the administrative decisions of public authority rental providers (i.e. the Director of Housing or, potentially, community housing providers). While it is clear that VCAT cannot usurp or directly interfere with the administrative decision of the rental provider to seek a possession order, the reasonable and proportionate test has many similar considerations to those required by the Human Rights Charter. This may allow a renter – if permitted and considered relevant by VCAT – to examine and cross-examination the director’s decision to evict; specifically, to examine whether ‘proper consideration’ (s 38 Human Rights Charter) has been given to the decision to seek the possession order (see Loielo v Giles [2020] VSC 722 (2 November 2020), [222–257]). The information obtained in this regard is on the record and may be beneficial for renters considering judicial review.

Regarding the Burgess case, it should be noted that the granting of the possession order means the decision to seek the possession order is no longer reviewable. However, the submissions and responses on record are likely to be of benefit to the question of the director taking action towards eviction.

It is not clear what VCAT will permit in this regard in terms of questioning, but it nonetheless provides a renter a better opportunity to advance alternatives (s 330A(h) RT Act). It also provides a better opportunity to determine what human rights have or have not been considered in the decision to pursue the possession order, who is responsible for the decision, and why reasonable alternatives are being refused.

Note that VCAT has taken a reasonably conservative approach to what ‘other course of action are reasonably available to the Tribunal’ instead of making a possession order (see LKZ v BSL (Residential Tenancies) [2020] VCAT 909 (24 August 2020)). This is particularly relevant where a renter may undertake to engage or contact therapeutic services voluntarily. While such undertakings cannot be ordered and are outside the jurisdiction of the RT Act, this is a relevant ‘course of action’ and informs what order VCAT may make (i.e. adjourning the possession order on other terms (see s 332A RT Act where available). (See also ss 130–131 VCAT Act).

To date, the reasonable and proportionate test has been treated as a relatively prescriptive consideration with regard to the list of factors in section 330A of the RT Act and the impact (s 330(f)) of the possession order on the renter (see Towell v HXO (Residential Tenancies) [2021] VCAT 450 (9 July 2021); cf. MNU v EIJ (Residential Tenancies) [2020] VCAT 1285 (17 November 2020). What VCAT allows or considers to be relevant (s 330A(j) RT Act) in cross-examination and the relationship to the administrative decision(s) of a public authority rental provider will be seen in future cases, including whether any interlocutory judicial reviews would be possible once it becomes apparent that a rental provider has not discharged their obligations under the Human Rights Charter.