The Meaning of ‘Public Authority’ and the Application of the Charter to Non-Government Bodies

Metro West v Sudi [2009] VCAT 2025 (9 October 2009) The Victorian Civil and Administrative Tribunal has held that a non-profit housing agency is a ‘public authority’ under section 4(c) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).

Justice Bell’s decision provides a detailed discussion of the considerations relevant to determining whether a non-governmental agency is required to comply with the Charter.  Importantly for those who advocate on behalf of people at risk of homelessness, the decision also recognises that ‘[d]isadvantaged people in need of social housing and at risk of homelessness are among the most vulnerable in the community.  Their human rights are imperilled by their circumstances.’

Facts

Metro West Housing Services Limited is a provider of transitional housing to those at risk of homelessness in the western suburbs of Melbourne.  Although a private company, its primary function regarding the allocation and management of housing stocks is governed by a service agreement with the Victorian Government.  Metro West receives government funding to provide these services and exercises delegated statutory powers under s 35 of the Housing Act 1983 on behalf of the government, allowing it to lease, sub-lease, acquire and dispose of property.

Metro West had introduced a policy of automatically issuing notices to vacate to its tenants at the beginning of their tenancy, and regularly throughout the tenancy, in order to ensure that the tenants did not overstay.  They sought to rely upon one of these automatic notices in applying for orders for possession against both Sudi and Hailu families.

Both the Sudi and Hailu families argued that Metro West was a public authority under the Charter, and was therefore not entitled to give the notice to vacate or make an application for possession because in doing so its actions were incompatible with their human rights protected under the Charter.

Whilst Metro West initially argued that it was not a ‘public authority’ as defined in the Charter, it later conceded this point and withdrew the notices to vacate.  The tenants therefore requested that Bell J make a formal declaration on the question of whether Metro West was a ‘public authority’.

Decision

In his decision, Bell J compared and distinguished at some length the comparative legislation and jurisprudence regarding functional public authorities in the UK, New Zealand and Canada.

Significantly, Bell J endorsed the reasoning of Lord Bingham and Baroness Hale in their dissenting judgements in the UK decision of YL v Birmingham City Council [2008] 1 AC 95.  Consistently with those judgments, Bell J emphasised frequently throughout his decision that ‘[t]he definition of ‘public authority’ in s 4 must be given a wide and generous interpretation which is consistent with [the central purpose of the Charter to protect and promote human rights]”

Bell J also made some useful observations regarding the policy rationale for the application of the Charter to public authorities, in the following terms:

The state cannot shirk its human rights responsibilities by implementing its programs and policies through private entities acting on its behalf.  Where private entities exercise public functions of a public nature on behalf of the State or a public authority, the functions come with unavoidable human rights responsibilities for the entity itself.

Bell J cautioned that the matter of determining whether an entity is exercising a ‘public function’ should be ‘approached as a matter of substance and not form or legal technicality’ and that ‘each case must be considered on its own facts and merits’.

In light of this, Bell J determined that the provision of social housing is a public function which the government exercises on behalf of the community in the public interest.  Together with the provision of public funding to various groups who exercise this function, Bell J held that this would be sufficient to characterise the functions exercised by Metro West as being of a public nature.

In addition, Bell J found that the statutory foundation of housing policies and programs contributed to the finding that Metro West carried out ‘public functions’.  Importantly, Bell J confirmed that relationships between entities and the government characterised by s 4(1)(c) do not need to be characterised or capable of being characterised in formal legal terms – it ‘covers relationships which may be looser than contract, agency and other legal categories…It covers arrangements under which the entity is acting as [the state’s] representative or for [the states’s] purposes in the practical sense’.

Notwithstanding s 4(5) of the Charter, Bell J noted that the provision of public funding can indicate both that the functions are of a public nature, and that the entity in question acts on behalf of the State or a public authority when exercising those functions.

The application of s 4(1)(c) requires the answer to two questions, which Bell J addressed in the following manner.

Are the functions being exercised of a public nature?

His Honour held that this question turns upon the nature of the functions and whether they are being exercised in the public interest, rather than the nature of the entity exercising those functions.  In finding that the functions exercised by Metro West in providing transitional housing services (including managing tenancies) were of a public nature, Bell J found that it was relevant to consider the responsibility which government has for the care and protection of vulnerable and disadvantaged people, especially those who are at risk of homelessness.

Are the functions being exercised on behalf of the State or a public authority?

His Honour held that this question requires an analysis of the relationship between the State (or public authority) and the entity in question.  Of particular relevance will be whether there is some arrangement under which the entity, in exercising the functions, is acting as their representative or for their purposes in the practical sense.  In considering the operations of Metro West, Bell J held that Metro West exercised the relevant functions on behalf of the State as a result of the following factors:

• there was a service agreement between Metro West and the government where the government contracted out the performance of its obligations;
• that service agreement included performance standards and obligations upon Metro West to comply with the government’s standards and policies in providing the services;
• Metro West received ‘block’ funding from the government to perform these services; and
• Metro West exercised delegated statutory functions.

For these reasons, Bell J made a declaration that when exercising the function of providing transitional housing (including the management of tenancies) under the service agreement with the government, Metro West is a public authority under s 4(1)(c) of the Charter.

Conclusion

Whilst the outcome of Bell J’s decision was not unexpected given the facts of the case, the decision is significant in the depth of analysis and reasoning regarding the application of s 4(1)(c) of the Charter.  Importantly, Bell J has clearly set out the manner in which the question of whether a particular entity is a public authority under the Charter will be approached.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2025.html.

Hayley Parkes, Human Rights Law Group, Mallesons Stephen Jaques