Tribunal confirms housing provider is subject to the Charter of Human Rights and Responsibilities

Goode v Common Equity Housing Limited (Human Rights) [2016] VCAT 93

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) requires public authorities to give proper consideration to, and act compatibly with, the human rights set out in the Charter. The Victorian Civil and Administrative Tribunal (VCAT) recently held that a registered housing association was subject to the Charter when providing social housing.

Background

Ms Goode commenced proceedings at VCAT against Common Equity Housing Limited (CEHL), a social housing provider, claiming it illegally discriminated against her and acted inconsistently with her human rights. Ms Goode submitted that CEHL’s conduct contravened the Equal Opportunity Act 1995 (Vic) and Equal Opportunity Act 2010 (Vic) (Equal Opportunity Acts), and the Charter.

Ms Goode relied on section 38(1) of the Charter, which makes it unlawful for a public authority to act incompatibly with a human right protected by the Charter. Ms Goode alleged that CEHL had acted incompatibly with eight rights protected by the Charter, including her rights to privacy, freedom of association and freedom of expression.

At first instance, VCAT held that CEHL had not contravened the Equal Opportunity Acts, and accordingly, that it did not have jurisdiction to consider CEHL’s compliance with the Charter. The Tribunal considered that it would have had jurisdiction to consider Charter compliance only where it had found CEHL to have breached one or both of the Equal Opportunity Acts.

Ms Goode appealed to the Supreme Court of Victoria, arguing that VCAT erred by not considering CEHL’s Charter compliance. The Court agreed that the Tribunal had erred, holding that section 39 of the Charter had been misconstrued (see decision here). On a proper construction, section 39 required VCAT to consider Charter compliance, regardless of whether Ms Goode’s claims of breaches under the Equal Opportunity Acts were made out.

Accordingly, the original decision was set aside and the proceeding remitted to VCAT for reconsideration.

Decision

To determine whether CEHL had complied with the Charter, VCAT was required to determine whether CEHL was a ‘public authority’ subject to the Charter. The Tribunal referred to section 4 of the Charter, which lists core entities considered to be public authorities, such as local councils, public officials, ministers and Victoria Police. Additionally, section 4(1)(c) provides that a public authority includes:

“An entity 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)”

To determine whether CEHL was a functional public authority under section 4(1)(c), VCAT was required to consider two questions:

1. Was CEHL exercising functions of a public nature?
2. Was CEHL exercising its function on behalf of the State?

Ms Goode submitted that CEHL’s provision of social housing satisfied both questions, meaning that CEHL had to act compatibly with the Charter. CEHL argued to the contrary. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened and provided submissions in support of Ms Goode’s position on this point.

Both parties referred to the Tribunal’s decision of Metro West Housing Services v Sudi (Residential Tenancies) [2009] VCAT 2025 (Metro West). In that case, the Tribunal found that Metro West Housing Services Limited, a provider of social housing, was subject to the Charter.

1. Was CEHL exercising functions of a public nature?

Section 4(2) of the Charter lists factors that may be taken into account when determining if a function is of a public nature. VEOHRC submitted that these factors suggested CEHL was exercising functions of a public nature because:

• the provision of social housing is connected to or generally identified with the functions of government (as held in Metro West); and
• CEHL received public funding to provide social housing.

VEOHRC tendered CEHL’s recent annual reports, which showed that a significant proportion of CEHL’s revenue derived from public funding. For example, VEOHRC submitted that in 2007–08, the Director of Housing transferred 79 properties worth approximately $34,398,575 to CEHL and, in the same financial year, CEHL received $224,827,465 from the Director of Housing as a reduction of capital grant liabilities. On this question, VEOHRC also cited Bell J in Metro West:

“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 in its various forms may vary, there is a strong public interest in the government making necessary arrangements for this to be done.”

CEHL sought to distinguish its functions from those considered in Metro West, submitting it was not exercising functions of a public nature because: 

• it was not contracted by government and did not exercise delegated statutory authority (c.f. Metro West, where the social housing provider exercised specific functions conferred on it by the Housing Act 1983 (Vic));
• the housing services it provided were of a different type to those considered in Metro West;
• it had no guaranteed source of government funding. Rather, it was reliant on successful grant applications to obtain government funding for capital works and relied on rental revenue for operational funding; and
• the government did not exercise a substantial degree of control over its activities.

After considering the submissions, the Tribunal held that the functions being exercised by CEHL were of a public nature. The Tribunal was satisfied that providing social housing, receiving capital grants and being subject to a detailed regulatory regime under the Housing Act 1983 (Vic) were indicative of CEHL exercising functions of a public nature.

2. Was CEHL exercising its function on behalf of the State?

CEHL submitted it was not exercising its function on behalf of the State as the services it provided were of an essentially private nature. In support of this point, CEHL noted that:

• the services it provided were not conferred by statute;
• it was not performing a regulatory role; and
• it was not funded by government.

VEOHRC submitted that CEHL was exercising its function on behalf of the State as:

• there did not need to be a formal relationship of agency;
• the system of registration of registered housing associations (such as CEHL) gave effect to government policy and the objects of the Housing Act 1983 (Vic);
• the government has a high degree of control over registered housing associations; and
• CEHL received considerable public funding.

On balance, the Tribunal held that CEHL was exercising its function on behalf of the State. Accordingly, CEHL was a public authority under section 4(1) of the Charter, so had to act compatibly with the Charter when exercising its social housing function.  The Tribunal went on to consider Ms Goode’s claims that CEHL had acted incompatibly with the Charter, ultimately concluding that CEHL had not breached the Charter.

Commentary

The judgment is useful as, apart from Metro West, there has been a dearth of judicial commentary as to whether a registered housing provider exercising a social housing function is a ‘public authority’ subject to the Charter.

Prior to this decision, uncertainty about community housing providers’ obligations under the Charter reduced the incorporation of the Charter in the day-to-day work of these organisations. While some community housing providers accepted the Charter as a helpful framework for making difficult decisions, others continued to dispute whether they were legally required to give proper consideration to human rights and act compatibly with human rights in decision-making.

This decision presents a new opportunity to strengthen the culture of human rights in the social housing sector. In particular, it presents an opportunity for training, guidance and oversight to ensure that the Charter encourages social housing landlords to:

• consider a tenant’s individual circumstances, including their family, any health problems and their risk of homelessness;
• appropriately balance competing obligations (eg the safety of tenants and reliance on rent revenue); and
• properly consider alternatives to eviction.

To embrace the clarity provided by this decision, and put any further uncertainty to rest, Justice Connect Homeless Law recommends that all housing providers registered under the Housing Act 1983 (Vic) are confirmed as public authorities for the purposes of the Charter. More detail about this recommendation, as well as further commentary about this issue, can be found in Homeless Law’s Charting a Stronger Course: Submission to the Eight Year Charter Review.

The full text of Goode v Common Equity Housing Limited (Human Rights) [2016] VCAT 93 can be found here.

David McIndoe was a secondee Lawyer at Justice Connect Homeless Law.