This article is part of our December theme, which focuses on one of the least appreciated but most fundamental aspects of well-being: housing. Read our Editorial for more on this theme.
As the only Australian State with human rights legislation, Victoria is in a strong position to assess the question of whether formal protection of human rights makes any practical difference to a community and its members.
There is no better time to consider this question than now, as the four-year review of Victoria’s Human Rights Charter (Charter) enters its final stages.
In this article, the PILCH Homeless Persons’ Legal Clinic (HPLC), takes a step back and considers whether legal protection of human rights in Victoria has had any real impact for people on the ground – in particular, Victorians who are experiencing or at risk of homelessness.
The Charter and the Charter Review
The Charter places obligations on Parliament, the courts and “public authorities” and aims to make sure that human rights are taken into consideration by each level of government, at all stages of decision-making. Importantly, public authorities include the obvious contenders such as Victoria Police and the Office of Housing; as well as non-government organisations that are carrying out a public function on behalf of government, including social and transitional housing providers.
Noticeably absent from the Charter’s protection are economic and social rights, such as the rights to adequate housing, health care or education. Instead, in a housing context, advocates rely on the rights to family and protection of children and the right not to have your home or privacy arbitrarily or unlawfully interfered with.
The Charter Review process resulted in 3834 submissions being made to the Scrutiny of Acts and Regulations Committee (SARC), 95 per cent of which supported retaining or strengthening the Charter. Despite this, ignoring the abundance of evidence before it, SARC’s 220 page report recommended removing the role of the courts and the obligations on public authorities under the Charter (i.e. two of the three limbs that currently exist).
The final stages of the review are now in the hands of the Department of Premier and Cabinet. They have until March 2012 to respond to SARC’s report and determine the future of the Charter.
The Charter’s role in preventing homelessness
With that backdrop, it’s timely to ask: what has the Charter done to alleviate disadvantage and prevent homelessness in Victoria? Has it done anything and is there any tangible reason to keep it?
The resounding answer to the second question is yes: the Charter needs to stay. It has made slow but very steady progress toward a more just and fair Victoria. It has led to better protection of our most vulnerable members and it is a vital instrument in preventing homelessness and alleviating disadvantage.
This view is informed by evidence gathered through the HPLC’s day-to-day work and summarised in HPLC’s submission to the Review, Charting the Right Course. An assessment of 20 matters revealed that the Charter had played a crucial role in preventing 42 people – including 21 children and seven families – from being rendered homeless. As a welcome ancillary benefit, the State avoided costs of emergency accommodation, health care and potential interaction with the justice system that may arise for people experiencing homelessness and extreme poverty.
The following story about Ben, a HPLC client, puts this in context:
Ben had lived in public housing with his mother for 18 years. After she passed away in 2005, when he was 29, things got off track and he was evicted for rental arrears.
As a result of undiagnosed depression resulting from the grief of losing his mother and his home, Ben’s business as a tradesman fell behind.
He entered a period of ongoing homelessness, during which he stayed for a time in a caravan park and did various stints in private rental, which he could not afford.
He lived with his partner on and off from 2005 until her sudden death in mid-2010. He had lived with her permanently since mid-2009 but was not listed as a resident. The Office of Housing told him he would have to move out or they would apply for possession. Ben applied for the tenancy to be transferred into his name.
This application was rejected because he couldn’t show he’d been living there for 12 months by paying rent. Ben recognised that he should have been paying rent, but said he never meant to stay – he wanted to find his feet and get his own place, but time just passed really quickly. Before he knew it, he’d been living there over 15 months and his partner was dead and he was facing eviction.
The HPLC assisted him to appeal the decision to reject the transfer application. The appeal set out his circumstances and hardship and pointed out that Ben had no savings and no assets and would inevitably be homeless if he was evicted. The appeal pointed to the Office of Housing’s obligation under the Charter to properly consider Ben’s right not to have his home arbitrarily or unlawfully interfered with. The appeal questioned whether the housing workers had considered alternatives to evicting Ben.
While the appeal was on foot, as a result of the stress and grief, Ben had a breakdown and was hospitalised. Fortunately, he recovered from this and was discharged under a voluntary Mental Health Care Plan.
This matter was resolved without going to VCAT. The Housing Office indicated that they did not want to evict Ben into homelessness, but could not leave him in the three-bedroom property he was in because he was just a single guy. Ben accepted this, saying “I’m not greedy; I just don’t want to be on the streets” and relocated to a one-bedroom unit.
This example shows how the Charter works in practice:
- It opens the doors to negotiation with HPLC, pointing out client hardship, social landlord obligations and negotiating alternatives to eviction.
- It reminds decision-makers to look at individual hardships, rather than making blanket decisions. In two cases, a person was living in a public housing property when their partner (the tenant) died. In the first case (prior to the Charter), a man and his children were evicted into homelessness because of a rigid application of government policy; in the second case (after the Charter), a man was transferred into a smaller property following cooperative, transparent negotiations.
- Ultimately, it leads to better outcomes. Staff in public authorities need a framework to help make difficult decisions in the face of limited resources and competing priorities.
- It doesn’t mandate or prescribe outcomes or stop social landlords from managing their tenancies and overwhelming waiting lists. In Ben’s case, it simply required someone to think about whether there was a better option than making him homeless. As it turned out, there was.
Room for improvement
The Charter’s effectiveness at preventing homelessness was dealt a blow by the recent decision of the Court of Appeal in Director of Housing v Sudi (Sudi), which held that the Victorian Civil and Administrative Tribunal (VCAT) does not have jurisdiction to consider Charter issues in eviction proceedings.
Of the 20 matters in which the HPLC used the Charter to advocate for clients, nine required VCAT to make the final determination. Very few, if any, of these clients would have been in a position to request a stay of the VCAT eviction proceedings while they made an application for judicial review of the public authority’s decision to evict them – the high costs and complicated legalistic framework would have been prohibitive.
VCAT is an accessible forum in which both tenants and housing providers can have their rights and obligations assessed and balanced. Prior to the Court of Appeal’s decision in Sudi, VCAT was carrying out this role and, generally, applying thoughtful and reasoned analysis in reviewing the actions of social landlords.
Post-Sudi, disadvantaged tenants are more vulnerable to eviction. Public authorities are less accountable for Charter compliance – there is less incentive to properly consider human rights when making decisions because there is no genuine consequence of not doing so.
This situation is easily remedied through a minor amendment to the Charter, which clarifies VCAT’s jurisdiction to hear Charter matters in tenancy proceedings. This would provide clear guidance for VCAT, public authorities and individuals – it would strengthen the protection of human rights in Victoria and would promote the improvements in decision-making and service delivery that the Charter is intended to bring about.
Has the Charter made a difference?
Ben’s case is just one of hundreds of real-life, practical examples communicated to the Government by individuals and organisations that have experienced the Charter’s impact in its four-year lifetime.
These stories challenge the suggestion that the Charter and human rights protection is pure rhetoric. Rather, they show how the Charter works in practice and support the notion that formal legal protection of human rights is a crucial part of the framework for protecting our most vulnerable members.
Based on the evidence that the Government currently has before it, it is unequivocal that the Charter has had a positive impact on the policies, practices and decision-making in Victorian public authorities.
In the Charter’s early days, a Victorian woman experiencing homelessness said: “Our human rights don’t exist. We are homeless and it [is] looked upon as our fault. Sometimes it is, other times not; but if someone keeps falling should we pick them up or walk straight over them …”
Legislative protection of human rights in Victoria has made it more likely that Victoria will be a fair and equal society where people are “picked up” rather than “walked straight over”. This is something we should be proud of; it makes Victoria a better place and it builds the kind of community that we’d all like to be part of.
Lucy Adams is a lawyer with the PILCH Homeless Persons’ Legal Clinic. More information about the Charter and the Charter Review is available on the PILCH website.