The jury is in – community housing is caught by the Charter of Human Rights

After a long period of uncertainty, it appears that a judicial decision maker has finally been willing to provide some guidance to the community housing sector on where they stand in relation to the Charter of Human Rights.

The case of Goode v Common Equity Housing Limited has been a long ordeal (and painful for all, no doubt).  The case has been to VCAT, then to the Supreme Court on appeal and then back to VCAT.  Although Ms Goode was ultimately unsuccessful in her quest to have orders made against CEHL, in the most recent (and hopefully final) written decision in this case (Goode v Common Equity Housing Limited [2016] VCAT 93), the Tribunal confirmed its views that:

  • CEHL was carrying out a public function in the provision of affordable housing; and
  • Due to the tight controls of the Housing Act, CEHL was close enough to government to be providing the service ‘on behalf of the State’.

This most recent decision goes a significant step further than the decision of VCAT in Sudi (Metro West v Sudi [2009] VCAT 2025), where the Tribunal held that Metro West was a ‘public authority’ for the purposes of the Charter.  Metro West had been the manager of public housing stock under a power of delegation in the Housing Act 1983 – it wasn’t hard to guess that it would be considered a ‘public authority’ when carrying out that function.  CEHL however, was providing community housing using its own housing stock.

CEHL is a ‘public authority’

In a written judgement that some will find useful for future reference, the member made the following observations:

  1. Housing the vulnerable is a vital function of government, thus it is a ‘public function’ for the purposes of the Charter.
  2. CEHL’s services were considered to be ‘funded by government’ due to the significant capital grants made to CEHL over the years.
  3. Due to the significant controls in the Housing Act, housing providers registered under the Act should be considered to be providing housing ‘on behalf of the State’.
  4. Although CEHL did not have to have a direct agreement with the State, the Charter does not require such a link in order for CEHL to be a ‘public authority’ under the Charter.

The deadline for CEHL to appeal has passed.  For now, it appears that this is the law in Victoria.

Are you answerable under the Charter in the same way as the Director of Housing?  Are you expected to perform in the same way as government even though you don’t have the resources of government?  Is this yet another unfunded administrative burden that you must somehow meet?

If you’re a registered housing provider, the answer to each of those questions appears to be “yes”.  Some will say “Why not? Why should a community housing tenant have fewer rights than a public housing tenant?”  Others will wonder whether this kind of position may compromise the sector’s ability to out-perform government in the provision of housing.

Action plan

So what now for the sector?  Here’s my suggested action plan:

  1. Get informed about the Charter.  If you’ve never looked at it – read it.  If you don’t understand it – get advice.  If your board is ignorant – brief them.  Lay your hands on materials produced by the VEOHRC and others about the Charter, what it requires and how you can comply.
  2. Presume that you are bound by the Charter in relation to all community housing, not just management of government stock or stock purchased with government grants.
  3. (Heaven forbid) review your procedures and policies.  Although not many things are more boring than a policy review, if you’re ever going to fend off a human rights claim, you need to be capable of demonstrating some knowledge of human rights and accounting of human rights in your organisation’s decision-making processes.  Good file notes along with sensible and fair processes will see you most of the way there.
  4. Get some training.  Someone qualified in the field can speak to your staff and help them to understand some of the finer points, the danger zones and how to comply with the Charter in the provision of housing and tenancy management.

For further information, please do not hesitate to contact us.