Since its entry into operation on 1 January this year, the PILCH Homeless Persons’ Legal Clinic (HPLC) has been using the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) as an advocacy tool in both its casework and its law reform activities to promote the rights of people experiencing or at risk of homelessness. While the success of the Clinic’s law reform projects will only come to light over time, the Clinic’s Charter based casework is already achieving great results. This Charter casework has principally been in the area of residential tenancy law where we have sought to promote and protect the rights of tenants at risk of eviction and homelessness.
The HPLC’s cases have not progressed to final hearing before a court or tribunal and we remain without a decision that directs how the Charter should be applied. Nonetheless, these cases reveal that there are many opportunities available for lawyers to utilise the Charter to boost legal arguments, which can often result in great outcomes for clients.
Overview of the Charter
Human rights are protected and promoted under the Charter by placing specific responsibilities on the three arms of Victorian government; Parliament, the Executive and Courts. Of particular importance is the obligation on the Executive (including Ministers, government departments and agencies, local councils etc) to act in a way that is compatible with human rights and give proper consideration to human rights when making a decision (section 38).
In addition, Parliament is required to assess all new legislation to ensure compatibility with human rights under the Charter (section 28) and the Courts must interpret all Victorian statutory provisions, so far as is possible to do so consistently with their purpose, in a way that is compatible with human rights (section 32(1)).
Relevant human rights
From the HPLC’s recent casework, the following human rights under the Charter are particularly relevant to housing and tenancy matters: the right to life (section 9); everyone’s right not to have their privacy, family or home unlawfully or arbitrarily interfered with (section 13); and the positive obligation imposed on the Victorian government to protect families (section 17(1)) and the right of every child to be afforded protection that is in their best interests and is needed by them by reason of being a child (section 17(2)). Other rights under the Charter that may be relevant in these matters are: recognition and equality before the law (section 8) and protection from cruel, inhuman or degrading treatment (section 10).
Relevant public authorities
The obligation to act and make decisions in a way that is compatible with human rights applies to public bodies such as the Office of Housing (which is the landlord of all public housing properties throughout Victoria) and other entities that exercise functions that are associated with services ordinarily provided by government, such as: community housing associations that provide low income housing to disadvantaged Victorians; accommodation service providers that provide transitional and/or crisis accommodation; and publicly funded nursing homes.
Relevant legislation
In relation to housing and tenancy matters, the Residential Tenancies Act 1997 (RTA) and the Housing Act 1983 will be relevant legislation that must be interpreted and applied consistently with human rights. For example, section 263 of the RTA provides Landlords with a broad discretion to give tenants 120 days’ notice to vacate for no reason. The Charter now requires that such a broad discretion be interpreted and applied consistently with human rights. The case study below is a good example of the HPLC’s recent success in using the Charter to argue against the use of these 120 eviction notices by public authorities.
The Charter in practice
Anna is a single parent, with an 18 month old child, currently living in transitional housing whilst waiting to receive urgent public housing. The Office of Housing recently offered Anna housing in a 4th floor apartment in a large block without any lift. Anna considered that the accommodation was inappropriate and she rejected the offer. After rejecting the offer of housing, Anna was served with a 120 ‘no reason’ notice to vacate by the accommodation service provider that was currently providing her with transitional housing.
HPLC lawyers provided Anna with legal assistance to challenge the notice to vacate and the service provider’s application in VCAT of an order for possession. HPLC lawyers argued that the accommodation service provider was a public authority under the Charter and that the issuance of the notice to vacate and application for possession were unlawful actions by the public authority, as the effect of the notice to vacate was that Anna and her young child would be evicted into homelessness. HPLC lawyers argued that this action, and its impact, engaged and unreasonably limited a number of human rights under the Charter, including: the right to life (section 9); the right to privacy and the home (section 13); and the positive obligation imposed on the Victorian government to protect families and the best interests of children (section 17). In addition, HPLC lawyers argued that section 263 of the RTA must now be interpreted and applied in a way that is consistent with human rights.
Before the matter could be heard in VCAT, the accommodation service provider withdrew its application to enforce the notice to vacate and Anna has been assisted to get back on the urgent public housing waiting list.
If you have questions about the Charter and its application to housing and tenancy matters please contact the HPLC team on 9225 6684.
