Community housing’s Human Rights Obligations

Moore’s Practice Leader, Tessa van Duyn, outlines how community housing organisations must Think and Act Human Rights….

The community housing sector has known for some time now that it holds legal obligations under the Charter of Human Rights and Responsibilities Act 2006 (Charter) to act compatibly with human rights, and give proper consideration to human rights when making decisions in the provision of housing and tenancy management[1].

In 2017, the Supreme Court of Victoria categorically reminded the Victorian government and public authorities (including the community housing sector) that it has legal obligations under the Charter to act compatibly with, and give proper consideration to, human rights when going about its business and interacting with the community.

The catalyst for this definitive statement of the law in Victoria was a case called Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors [2017] VSC 251.

Not only does this landmark case serve as a reminder to public authorities that they have legal obligations to act compatibly with human rights, it is also a good lesson in the myriad benefits of embedding human rights into the policies and practices of the community housing sector. Such a proactive and preventative approach goes a long way to achieving the government’s overarching objective of the protection and promotion of human rights in Victoria.

Helpfully, the Court in this case set out a useful roadmap for how public authorities can comply with human rights in practice.

Section 38 of the Charter imposes two separate obligations on public authorities – they must act compatibly with, and give proper consideration to, human rights.

In relation to the first limb of s38(1), ‘the substantive limb’, the Court held that determining whether or not a decision or act limits human rights requires the following:

  1. construed broadly, identify which human rights are relevant to the act or decision
  2. consider whether the making of the decision, or taking of action does not comply with the relevant human rights
  3. where an act or decision does limit human rights, is that limitation reasonable and justifiable in accordance with s7(2) of the Charter?
  4. if it is not a reasonable limitation, then it is incompatible and therefore unlawful under s38(1) of the Charter.

The second ‘procedural limb’ has already been the subject of some judicial interpretation.[2]

The Court in this case helpfully synthesised the approach to what is required by the obligation to give proper consideration:

A decision-maker must:

  1. understand in general terms which rights may be relevant and whether and how those rights will be interfered with by the decision;
  2. have seriously turned his or her mind to the possible impact of the decision on an affected person’s human rights and the implications for that person;
  3. identify the countervailing interests or obligations; and
  4. balance competing private and public interests as part of the justification exercise.

Our best advice is to keep the Charter and human rights front and centre when you are going about your daily business and dealings with the Victorian community. Not only will this protect you from claims of unlawful conduct and decision-making under the Charter, but it will no doubt improve your processes and service delivery. After all, housing vulnerable people is a fundamentally important aspect of a good and just society; it should have human beings and therefore human rights at its core.

For more information or help on how best to put human rights compliance into practice in your housing association, feel free to contact Tessa van Duyn, Practice Leader at Moores.

[1] See the decision in Goode v Common Equity Housing Limited [2016] VCAT 93.

[2] (Castles v Secretary to the Department of Justice (2010) 28 VR 141; De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; Bare v IBAC (2015) 48 VR 129).