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Negotiating with public authorities and functional public authorities using the Charter

Last updated: 29 Mar 2021

 

Section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) provides that it is unlawful for public authorities to act in a way that is incompatible with human rights or fail to give proper consideration to human rights when making a decision. The Charter is therefore an important tool in negotiating with entities such as the Director of Housing (DOH) and community housing providers (CHPs) who are regulated by the Charter.

Note on terminology:

  • Public housing’ refers to housing administered directly by the government through the DOH
  • Community housing refers to housing provided by not-for-profit organisations. Community Housing providers are registered and regulated by the government. Common community housing providers include Launch Housing and Unison Housing
  • Social Housing’ is an umbrella term that covers both public and community housing

What is a public authority?

The conduct obligation in s 38 of the Charter applies to ‘public authorities’.

Different persons are classified as public authorities under s 4 of the Charter..

The definition of public authority covers both ‘core’ and ‘functional’ public authorities. The distinction between these two types of functional authorities is outlined below.

‘Core’ public authorities

‘Core’ public authorities are entities that will always be public authorities regardless of the function they are performing. The DOH is a key example of a ‘core’ public authority.

Other ‘core’ public authorities under s 4 include:

  • Public officials such as employees of the public service, the Victorian Public Sector Commissioner, directors and staff of some public entities, court staff and parliamentary officers
  • Entities established by a statutory provision that has functions of a public nature
  • Local councils, councillors and members of council staff
  • Members of parliamentary committees
  • Courts or tribunals but only when acting in an administrative capacity (i.e. when listing cases or acting in an administrative capacity).

‘Functional’ public authorities

The definition of public authority also includes ‘functional public authorities’ being entities 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)).

This extends the scope of the Charter to include some non-government entities if they have been granted ‘functions of a public nature’.

When is a person or entity a functional public authority?

There is a two-step test for determining if an entity is a functional public authority.

The first step is to determine whether the function being exercised is public in nature. The nature of the function being performed is important for this consideration, rather than the overall person or entity.

Practice tip 

Section 4(2) of the Charter lists factors to consider when determining if a function is public in nature. These are not exhaustive or determinative. The factors include:

  • whether the function is conferred by or under a statutory provision;
  • whether the function is connected to or generally identified with functions of government;
  • whether the function is of a regulatory nature;
  • whether the entity is publicly funded to perform the function;
  • whether the entity that performs the function is a company (within the meaning of the Corporations Act 2001 (Cth)), all of the shares in which are held by or on behalf of the state. For example, all the shares in the companies responsible for the retail supply of water within Melbourne are held by or on behalf of the state.

 

The second step is to determine whether the function is being exercised on behalf of the state or another public authority.

Practice tip

  • Section 4(4) of the Charter outlines that a function can be exercised on behalf of the state or a public authority even if the entity is not acting as an agent for the state or another public authority.
  • Section 4(5) of the Charter clarifies that an entity receiving public funding to perform a function won’t automatically be exercising the function on behalf of the state or a public authority.

 

Are community housing providers functional public authorities?

It is Justice Connect Homeless Law’s view that all community housing providers are functional public authorities for the purpose of s 4 of the Charter. There is VCAT precedent to that effect,[1] and higher courts in other common law jurisdictions have accepted that non-governmental entities which perform public functions with public money on behalf of the state can constitute public authorities.[2]

However, in the case of Durney v Unison Housing Ltd [2019] VSC 6 (Durney), the Victorian Supreme Court found that the decision of the relevant community housing provider to give a notice to vacate was not a function of a public nature for the purposes of being amenable to judicial review at common law. Homeless Law’s position is that it remains arguable that community housing providers are functional public authorities under s 4 of the Charter through the delivery of social housing on behalf of the state. We note that in Durney the Court did not consider the specific issue of whether a community housing provider was a functional public authority under the Charter.

It is therefore arguable that community housing providers are bound by the obligations imposed by the Charter and Justice Connect Homeless Law recommends continuing to engage community housing providers in Charter-based negotiation in this nuanced way. It has been Homeless Law’s general experience that most community housing providers do not dispute that they are bound by the Charter.

[1] Goode v Common Equity Housing Limited (Human Rights) [2016] VCAT 93; and Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025.

[2] R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.

Conduct obligation

Section 38 of the Charter prohibits public authorities acting in a way that is incompatible with human rights or failing to give proper consideration to human rights when making a decision. This section obliges public authorities both to act compatibly with human rights (i.e. a substantive obligation) and to properly consider relevant human rights in decision-making processes (i.e. a procedural obligation).

This is the main section of the Charter that can be relied upon to hold social housing providers (assuming that they are public authorities for the purposes of the Charter) to account for failing to act compatibly with human rights or to give proper consideration to a relevant human right.

Note that the obligation in s 38 is qualified by under s 7 of the Charter which allows rights to be limited where reasonably and demonstrably justified (see ‘Limiting Human Rights’ below).

Exceptions to conduct obligation

No alternative decision: Under s 38(2), a public authority does not breach the conduct obligation where, as a result of a statutory provision, it could not reasonably have acted differently or made a different decision.

Decisions of a private nature: Under s 38(3), the conduct obligation does not apply to acts or decisions that are of a ‘private nature’.

Religious bodies: Under s 38(4), a public authority is not required to comply with its conduct obligations if it has the effect of impeding or preventing a religious body from acting in conformity with the religious doctrines, beliefs or principles that apply to that religious body. Under s 38(5), religious body includes:

  • a body established for a religious purpose; or
  • an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

Limiting human rights

Human rights can be lawfully limited under s 7 of the Charter but only where reasonably and demonstrably justified having regard to the factors in s 7(2) being:

  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • the relationship between the limitation and its purpose; and
  • any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

At a bare minimum, the decision maker should at least be able to refer to some assessment undertaken by them of the factors outlined in s 7(2) of the Charter in justifying the relevant decision (e.g. to give a notice to vacate). If they are unable to do this, it is likely that only the most superficial consideration has been given to the renter’s human rights and that the decision has not involved a proper consideration of human rights under s 38(1) of the Charter. If the housing provider can point to some assessment having regard to the factors outlined in s 7(2) of the Charter, this will not necessarily mean the decision is compatible with human rights or that the limitation of those rights can be demonstrably justified.

Legal remedies for unlawfulness

Under s 39(1) of the Charter, a social housing renter can only seek legal remedies for an act or decision that breaches the Charter where the act or decision in question is also unlawful independently of the Charter. That is, there must also be a non-Charter ground of unlawfulness to obtain relief for a breach of the Charter. This is commonly satisfied by seeking judicial review of a decision under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) on an administrative law basis (i.e. natural justice, relevant or irrelevant considerations), which represents a non-Charter ground of unlawfulness. Given many social housing providers will have policies that require them to consider renter’s rights, failure to consider these policies as a relevant consideration can be an important avenue if you are considering judicial review.

Note that since the Supreme Court decision in Burgess & Anor v Director of Housing & Anor [2014] VSC 648 (Burgess), the decision to issue a notice to vacate can only be challenged prior to a VCAT hearing. The decision to seek judicial review of a notice to vacate must therefore be made as soon as possible after receiving the notice to vacate. Once VCAT makes a possession order, the opportunity to challenge the notice to vacate decision is gone, and a judicial review challenge must then be lodged in-between purchase and execution of a warrant, which can be a very narrow time-frame.

Process for judicial review

Judicial review proceedings are commenced pursuant to Order 56 of the Rules. Under O 56.01(2) and O 56.02(1), a proceeding for judicial review must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. If a plaintiff wishes to commence judicial review outside of this limitation period, they must first seek leave to do so under O 56.02(3) of the Rules and the Court will only do so under exceptional circumstances (see Kuek v Victoria Legal Aid & Anor [2001] VSCA 80).

If the judicial review application is upheld, the Court has the power under O 56.01(1) to issue any of the common administrative law writs (i.e. certiorari, mandamus, prohibition and quo warranto).

To make an application for judicial review under O 56.01(2), the following need to be filed at the Supreme Court prothonotary office:

  • An originating motion (Form 5G of the Rules);
  • A summons (Form 46A of the Rules). The summons is an application on summons for a directions hearing and must be filed within 7 days of the originating motion pursuant to O 56.04(2) of the Rules. Preferably it should be filed together with the originating motion;
  • The summons should be filed together with the Judicial Review Appeal List Hearing Date Information Form  which is emailed to judicialreview@supcourt.vic.gov.au;
  • An affidavit in support and any other relevant affidavits;
  • Fee Waiver Affidavit and Application (almost all Homeless Law clients will be eligible for a fee waiver); and
  • A proper basis certificate (Form 4B of the Rules) and overarching obligations certification (Form 4A of the Rules).

If judicial review is being sought on conventional administrative law grounds together with Charter based judicial review grounds, you will need to (in addition to the above steps):

  • prepare a Charter Notification under s 35 of the Charter);
  • file this with the prothonotary together with the originating motion; and
  • personally serve the notification on the defendant and email it to the Victorian Government Solicitors’ Office (VGSO) at charter@vgso.vic.gov.au  and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) at legal@veohrc.vic.gov.au.

Once filed with the Supreme Court prothonotary, the lawyers will need to arrange for personal service of all of these documents on the defendant.

It is also important to note that if a social housing renter is unsuccessful in an application for judicial review, a costs order is likely to be made against them. The client needs to be advised of this risk, asked to enter into a conditional costs agreement and be given advise on whether or not they may be judgment proof.

Given the complexity of judicial review matters and the potential cost consequences, you must always speak with your team leaders in addition to Homeless Law principal lawyers before pursuing judicial review remedies on behalf of a client. In most cases, it will be appropriate to request the assistance of pro bono counsel to advise on the merits of the application before proceeding.

Practice example – The Burgess decision

An example of a successful action for unlawfulness under s 38 of the Charter is Burgess.

Ms Burgess lived in a public housing property and her teenage son regularly stayed at the property. She had a history of substance dependence, anxiety and depression. She had also served a custodial sentence for trafficking offences dated 2008 and 2011. Ms Burgess sought judicial review of the Director of Housing’s decisions to issue Ms Burgess with two notices to vacate for ‘illegal use’ of the property and to apply to VCAT for a warrant of possession.

Since Ms Burgess sought the remedy of certiorari (i.e. to quash the legal effect of the Director’s decisions) by way of judicial review, s 39 of the Charter enabled her to also seek that remedy on the ground of unlawfulness under the Charter.

Macauley J held that the Director’s decisions were unlawful under s 38 of the Charter because the Director failed to consider the human rights of Ms Burgess and her son under s 17 of the Charter, which relates to the protection of families and children.

Read the detailed summary of the Burgess decision and its implications.

Damages not recoverable

Under s 39(3) of the Charter, a breach of the Charter (such as a public authority making a decision that is incompatible with human rights) does not entitle a person to be awarded damages. However, this does not affect a person’s entitlement to damages outside of the Charter (s 39(4))

Human rights commonly used in negotiations with social housing providers

The Charter provisions that are most commonly invoked in the context of evictions from social housing are:

  • s 13 of the Charter, which contains the right against unlawful or arbitrary interference with privacy, family, home or correspondence; and
  • s 17 of the Charter, which contains rights relating to the protection of families and children.

Section 13 of the Charter recognises a relatively broad range of distinct, yet connected, rights. The main rights relevant to negotiations with social housing providers are those relating to the ‘home’ and the ‘family’, which are not defined in the Charter, but are generally interpreted broadly. It is interferences with the sanctity of these rights on an unlawful or arbitrary basis that s 13 of the Charter addresses, such as disturbances to a person’s occupation of property (e.g. via eviction) that are not permitted by law or that lack any regard to these rights.

Section 17 of the Charter has two limbs. Section 17(1) of the Charter focuses on the entitlement of families, as the fundamental group unit of society, to be protected by society and the state. Section 17(2) of the Charter also recognises that children, as a result of their vulnerability, are entitled to special protection. The scope of the rights recognised by s 17 of the Charter therefore includes the social and financial interests of families generally and children specifically, such as physical security in having an ongoing place of residence to return to.

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