Protecting the right to home: How effective is the Victorian Charter ?

Abstract

This article argues that the Victorian Charter’s remedies provision needs to be amended in order to make effective the right to protection from arbitrary eviction in that state. In particular, public housing tenants should be able to challenge their eviction in a cheap and accessible forum, rather than facing the risks and expense of court proceedings.

In the absence of national human rights legislation, three jurisdictions – Victoria, ¹ Queensland ² and the Australian Capital Territory ³ – have each enacted such laws. These laws incorporate the rights found in the International Covenant on Civil and Political Rights (ICCPR), including the right to privacy, family and the home. ⁴ However, Victoria’s Charter of Human Rights and Responsibilities contains a provision which makes the enforcement of this right difficult, expensive and risky. In Director of Housing v Sudi, ⁵ the Victorian Court of Appeal held that public housing tenants who are being evicted may commence separate court proceedings to enforce their rights, however they cannot challenge the eviction in the relatively informal and inexpensive forum of the Victorian Civil and Administrative Tribunal (VCAT).

An important aspect of the right to home under the ICCPR is protection from unjustified eviction. Particularly for members of vulnerable groups, eviction can have serious consequences including deterioration of health, separation of families, and disruption of work and study. However, Australian residential tenancy legislation typically provides few safeguards around eviction. Under the ICCPR, forced eviction must be justified in terms of its reasonableness and proportionality.

This article argues that the Victorian Charter’s remedies provision needs to be amended to make the right to protection from arbitrary eviction effective in Victoria. In particular, public housing tenants should be able to challenge their eviction in a cheap and accessible forum, rather than facing the risks and expense of court proceedings. Providing effective protection from arbitrary eviction is particularly important considering Australia’s current housing crisis, and proposals for national human rights legislation.

This article first outlines the scope and importance of the right to home under the ICCPR, and the weak protections provided by residential tenancy law. Second, the article examines the importance of justifying interference with human rights. Third, it examines the Charter’s remedies provision, and its implications for public housing tenants facing eviction. Finally, the case for amending the Charter’s remedies provision is outlined, highlighting the significance of promoting access to justice for effective human rights protection.

The right to home and tenancy law

Under Article 17, the ICCPR provides that

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …

(2) Everyone has the right to the protection of the law against such interference … ⁶

Similarly, s 13 of the Victorian Charter relevantly provides that

A person has the right –

(a) not to have [his or her] privacy, family, home or correspondence unlawfully or arbitrarily interfered with; ⁷

The nature, scope and importance of these rights has been articulated by United Nations (UN) committees, ⁸ domestic courts ⁹ and scholars. Writing extra-curially, Justice Bell described the significance of home as much more than

shelter, a dwelling and a place to inhabit … [i]t is the primary location of individual physical existence which is indispensable for human flourishing in every respect, including participation in work and education and in cultural, social and religious life. ¹⁰

Security of tenure, and freedom from arbitrary eviction, is a crucial aspect of the right to home. ¹¹ Therefore, regardless of whether they own or rent their home, ‘all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.’ ¹² Protection of the right to home challenges traditional notions of property and contract law, under which a residential tenancy may be terminated quickly and easily. ¹³ Rather than characterising the relationship as one of landlord and tenant, human rights law regards public housing providers as organs of the state, with consequent legal duties, and public housing tenants as holders of a legal right not to be forcibly evicted.

Freedom from forced evictions does not mean that public housing tenants can never be evicted. Rather, eviction may occur when it is reasonable and justified, ‘such as in the case of persistent non-payment of rent or of damage to rented property without any reasonable cause’. ¹⁴

The right to home is particularly important for members of vulnerable social groups. As explained in the UN Committee on Economic, Social and Cultural Rights’ General Comment No 7:

[w]omen, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction. Women in all groups are especially vulnerable given the extent of statutory and other forms of discrimination which often apply in relation to property rights (including home ownership) or rights of access to property or accommodation, and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. ¹⁵

A large proportion of people living in social housing (which consists of public and community housing) ¹⁶ are former refugees or migrants. ¹⁷ Many members of this group are vulnerable due to having a non-English speaking background, health issues or a disability, and low income. ¹⁸ Refugees and former refugees are particularly ‘vulnerab[le] … [due to] the suffering they have endured, [and] the trauma and insecurity associated with persecution and flight’. ¹⁹ Under international law, the state has a ‘special responsibility’ not to arbitrarily uproot them and potentially break important connections with local communities, family, work, neighbours, health services and schools. ²⁰

Before the Charter was enacted, the process for evicting tenants was regulated exclusively by the Residential Tenancies Act 1997 (Vic) (‘RTA’), which provides a quick process with relatively few protections for tenants. Although tenants living in public or community housing are generally more vulnerable than private tenants, the RTA does not distinguish between these groups regarding eviction.

Tenancy law is commonly regarded as part of contract and property law. ²¹ Residential tenancy legislation exists in all Australian states and territories, and tribunals are required to determine proceedings quickly and efficiently. The process for evicting a tenant is relatively easy for landlords and usually involves giving a notice to vacate and seeking a possession order if the tenant does not leave. Historically, eviction processes generally take no account of the circumstances of the tenant, or the effect of eviction on them or their family. If the formal requirements were met, the tribunal had to issue a possession order and evict the tenant.

Justifying interference with human rights

Section 7(2) of the Charter provides that rights may be limited:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. ²²

Therefore, rights can be limited only where this is ‘reasonable’ and ‘demonstrably justified’. This is consistent with the interpretation of ICCPR art 17, under which forced eviction is allowed only when this is justified in the circumstances. Leading human rights scholars emphasise the duty to justify any breach of human rights. After a breach of human rights has been found, the relevant public authority must demonstrate how its actions are reasonable and proportionate, and therefore justified, in the circumstances. ²³ Further, the Charter requires ‘public authorities’ ‘to act compatibly with human rights and give proper consideration to human rights in making decisions.’ ²⁴ Thus, the State has a duty to protect and uphold human rights. A ‘public authority’ is defined in s 4 of the Charter. Essentially, this covers ‘core’ or ‘nominated’ public authorities, and ‘functional’ public authorities, or entities whose functions are those of a public nature, when the entity is exercising those functions on behalf of the state or another public authority. In this way, Homes Victoria as a public housing provider must comply with the Charter when evicting tenants.

In considering whether an interference with rights is justified, ‘the nature and extent of the limitation’ is an important consideration. ²⁵ The European Court of Human Rights has highlighted that eviction or ‘loss of one’s home is a most extreme form of interference with the right’. ²⁶ This is because eviction is a complete and permanent extinguishment of the connection between a person and their home.

The Charter’s remedy provision

As mentioned above, Australian human rights legislation requires public authorities to act compatibly with human rights and to properly consider human rights when making decisions. In Victoria, the ability to argue that a public authority has breached this duty is limited by s 39 of the Charter. This section is extremely poorly drafted. ²⁷ However, the section suggests that breach of the Charter can only be raised as part of other legal proceedings and most commonly, judicial review. This interpretation of s 39 was confirmed in Sudi, ²⁸ which considered whether the Director of Housing (‘Director’) ²⁹ is required to justify its decision to evict at the eviction hearing, or whether tenants are required to commence separate court proceedings to challenge their eviction on human rights grounds.

In Sudi, the Director sought to evict Mr Sudi and his infant son from their home. Mr Sudi was a former refugee, born in Somalia. He relied on government benefits for income and has few assets. He was eligible for public housing and was on a waiting list. He moved into the premises to care for his sick mother, who subsequently died. The Director applied for a possession order to evict them, as it clearly had power to do under residential tenancy law. ³⁰ Mr Sudi and his son had strong connections to the local Somalian community, schools and health services, and they wished to remain in their home. The Director, on the other hand, argued that it is not required to justify the eviction in terms of its proportionality and reasonableness. It argued that compliance with the Charter can only be raised if separate proceedings are commenced in the Supreme Court.

At first instance, Justice Bell, sitting as President of VCAT, held that tribunal members sitting in the Residential Tenancies List may review decisions of the Director for compliance with the Charter. Justice Bell dismissed the Director’s application, as no evidence was provided that the eviction of Mr Sudi was justified. ³¹ The Director appealed, and all three members of the Court of Appeal granted the appeal.

The Court of Appeal held that public housing tenants could not raise human rights matters at the eviction hearing, as this would amount to ‘collateral review’ by the tribunal. ³² The judges found that collateral review was inconsistent with the purposes of the RTA, which is to resolve disputes quickly and inexpensively, ³³ and the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which confers limited jurisdiction on the tribunal. ³⁴

Significantly, the Court found that s 39 of the Charter precludes VCAT from considering human rights issues in eviction proceedings. ³⁵ Although it is unlawful for a public authority to breach human rights, ³⁶ the Court confirmed that the Charter does not create an independent cause of action. ³⁷ Therefore, tenants seeking to enforce their human rights and to challenge the eviction on human rights grounds can only commence separate proceedings in the Supreme Court. Subsequent decisions demonstrate that it is extremely difficult for tenants to succeed in such proceedings. ³⁸

The Charter’s remedies provision should be amended

There are several reasons why s 39 of the Charter needs to be amended to allow public housing tenants to challenge their eviction on human rights grounds at the eviction hearing. First, the purposes of the RTA include ‘to provide for the inexpensive and quick resolution of disputes.’ ³⁹ Similarly, the Victorian Civil and Administrative Tribunal Act 1998 (Vic) prioritises the quick, efficient and inexpensive resolution of tribunal proceedings. Therefore, contrary to the finding of the Court of Appeal, resolving proceedings quickly and efficiently requires that the tribunal determines both residential tenancy and Charter issues in the same proceedings, rather than fragmenting proceedings by requiring human rights issues to be raised in a different forum.

Second, the Charter was enacted to improve human rights protection in Victoria, and to bring Victoria into alignment with international human rights standards. Former Victorian Attorney-General Rob Hulls described the enactment of the Charter in 2006 as a ‘historic day for Victoria’. ⁴⁰ Previously, residential tenancy legislation regulated the eviction process exclusively, and there was no distinction between private and public landlords. ⁴¹ Since the enactment of the Charter, however, public landlords have additional duties. The landlord-tenant relationship, underpinned by contract and property law, is now overlayed with human rights law, which imposes duties on public authorities and confers rights on public housing tenants. Allowing human rights arguments to be made at first instance ensures that the process is quick, efficient, inexpensive and accessible for tenants. This is appropriate, given the potential vulnerabilities of public housing tenants, and the vast resources of the state.

Since the Charter was enacted, human rights have played a significant role in the Victorian legal system. As noted above, Charter obligations overlay other pre-existing rights and duties. Human rights arguments may legitimately be made in many different contexts. In Sudi, Weinberg JA suggested that raising human rights in eviction proceedings would ‘thwart’ or abuse such proceedings. ⁴² Such language is inaccurate, as it appears to question the legitimacy of tenants raising human rights arguments in eviction proceedings. In another context, Maxwell P acknowledged the validity and importance of such arguments and encouraged them in appropriate circumstances. ⁴³ The UN Special Rapporteur on adequate housing has emphasised the importance of changing ‘persisting mindsets’ which consider housing as a ‘privilege’ rather than a right. ⁴⁴

Third, giving VCAT jurisdiction to hear and determine Charter claims would reduce costs for tenants. ⁴⁵ Requiring tenants to commence proceedings in court means that they would generally require legal representation, due to the complexity of procedural rules. Further, they face the risk of paying costs if they are unsuccessful. Public housing tenants often rely on pro bono assistance, but there is no guarantee that they will be able to secure representation. Some – perhaps, many – will be deterred from enforcing their rights by these risks. ⁴⁶ To provide effective protection, human rights must be accessible. ⁴⁷

Fourth, VCAT is experienced in such claims, as it already conducts merits review for various government decisions, conducts alternative dispute resolution and mediation, and it would fit well within the tribunal’s Human Rights Division. ⁴⁸ In Sudi, Weinberg JA argued that human rights matters should be determined by judges and not tribunal members, because human rights law is extremely complex and contentious. ⁴⁹ However, although the Charter adds some complexity to eviction proceedings involving public authorities, tribunal members currently hear and determine a range of complex matters, such as state taxes, statutory planning, anti-discrimination law and guardianship. Human rights are no more contentious or difficult to apply than any other area of law. As indicated above, there is a wealth of international materials and decisions of foreign courts to guide the tribunal.

In jurisdictions such as the United Kingdom (UK), tribunals have jurisdiction to consider human rights arguments. In Manchester City Council v Pinnock, ⁵⁰ the UK Supreme Court held that public housing tenants may raise human rights arguments in eviction proceedings. The Human Rights Act 1998 (UK) expressly allows proceedings against a public authority based on breach of its duties under the Act. ⁵¹ This is a provision that Victoria could easily adopt.

Fifth, judicial review only determines whether a legal error was made in a prior administrative decision, and, if so, whether it should be quashed and remitted to the decisionmaker. This is different from determining whether an eviction was proportionate and justified. Determining the latter issue, which is central to protecting the right to home under the ICCPR, necessarily involves hearing evidence from witnesses for example concerning the reasons for an eviction and any alternative measures available to the public authority. Courts exercising judicial review cannot hear and test evidence and cannot make conclusive findings of fact. ⁵² Therefore, judicial review proceedings do not determine whether an eviction is reasonable and proportionate. Further, requiring tenants to commence separate proceedings is undesirable, as this causes delays, it fragments proceedings, and it undermines the goals of certainty and finality of litigation.

Sixth, allowing the tribunal to consider human rights would align Victoria with the ICCPR and with the European Convention on Human Rights. The European Court of Human Rights has emphasised the importance of tenants being able to challenge eviction proceedings on human rights grounds in an accessible forum. ⁵³ Despite possible concerns about a potential proliferation of unsubstantiated proceedings, the tribunal has power to restrict argument to relevant issues, and there is no indication that frivolous arguments are commonly made in tribunal proceedings. Indeed, the informal procedures of the tribunal are better suited to resolving human rights arguments quickly and efficiently than formal court proceedings. Resolving these matters at a tribunal hearing, rather than court proceedings, also results in costs savings of public funds.

Consistently with the ICCPR, the onus should be on the Director to demonstrate compliance with human rights. ⁵⁴ Public housing tenants should not be required to commence separate court proceedings to enforce their human rights. Rather, the Director must show that evicting a person from their home is proportionate and reasonable in the circumstances. This aligns with the underlying purpose of human rights legislation, which is to protect a person’s human dignity.

Seventh, the importance of enabling effective enforcement of human rights is highlighted by recent debates concerning housing security and homelessness in Australia, ⁵⁵ and recent housing policies adopted in response to this crisis. Although housing and homelessness is primarily a state or territory matter, a National Agreement on Social Housing and Homelessness was recently adopted under which the federal government provides $1.8 billion per year to the states and territories to provide safe and affordable housing. ⁵⁶ The National Housing and Homelessness Plan includes A Better Deal for Renters, which seeks to harmonise and strengthen renters’ rights across Australia. ⁵⁷ Although these policy developments acknowledge the current housing crisis, and they are welcome, public housing tenants need enforceable rights regarding protection from arbitrary eviction from their home. As Kevin Bell has argued, enforceable rights are needed to realise the ‘human right to decent housing for all’. ⁵⁸

Finally, the effective enforcement of human rights is highlighted by the Australian Human Rights Commission’s recommendation for enacting federal human rights legislation. ⁵⁹ The proposed legislation would include the right to home as articulated in the ICCPR. ⁶⁰ It would include a requirement for courts to consider international law when interpreting rights ⁶¹ and to interpret legislation compatibly with human rights. ⁶² Similar to existing charters of rights, proposed federal human rights legislation would allow rights to be limited when this is demonstrably justified. ⁶³ Most significantly, the proposed legislation would include a direct cause of action. ⁶⁴ Like the Human Rights Act 1998 (UK) ⁶⁵ and the HRA ACT, ⁶⁶ the Victorian Charter should be amended to enable tenants to challenge their eviction on human rights grounds at the eviction hearing.

Conclusion

This article has outlined the importance of the right to home, and protection from arbitrary eviction under international human rights law. This right has particular significance for public housing tenants, for whom eviction can have extremely negative consequences. Therefore, enforcement of this right should be effective, practical and accessible.

Amending the Charter to enable public housing tenants to challenge their eviction on human rights grounds at the eviction hearing would bring Victorian law into alignment with ACT and UK human rights legislation, and proposed federal human rights legislation. More significantly, Victorian law would then correspond to the ICCPR and the significance this treaty gives to the right to home and to ensuring that public authorities can evict a person only when this is reasonable and proportionate.