This article is a part of our August focus on Homelessness in Australia – you can access more content from this issue here.
By Tony Keenan
When the Victorian Parliament passed the Charter of Human Rights and Responsibilities Act in 2006 it presented a double-edged sword for community organisations working with people experiencing homelessness.
While the Charter offered an important tool to help advocate the human rights of Victorians who experience homelessness, it also presented cash strapped community organisations with an additional compliance burden; the need to comply with the Charter as a public authority.
At the time, some people feared it wouldn’t be possible to negotiate the complexities of providing homelessness support and comply with the Charter. Seven years on this has proven to not be the case; the Charter has enhanced the operations of specialist homelessness services.
Community Organisations as Public Authorities
One of the key requirements of the Charter (in section 38) makes it unlawful for a “public authority” to act in a way that is incompatible with a human right protected by the Charter, or to otherwise fail to give proper consideration to a human right protected by the Charter.
The threshold question as to whether a not-for-profit organisation delivering funded homeless services was a public authority was decided by Justice Kevin Bell, President of the Victorian Civil and Administrative Tribunal (VCAT) in Metro West v Sudi.
Justice Bell’s decision means that agencies delivering funded homelessness services are required to comply with the Charter.
What does Charter compliance require?
Public authorities must consider civil and political rights (as contained in the UN Covenant) when delivering services and making decisions. These rights include the right to be treated equally, to be safe from violence and abuse, to be part of a family and to have privacy respected.
The purpose of the Charter is to ensure organisations consider and give due weight to these human rights in the planning and delivery of services. While no action as such can be taken against an organisation that breaches the Charter, the Victorian Ombudsman can receive and investigate complaints about administrative actions of public authorities that are in breach of, or have not properly considered, human rights.
Moving beyond compliance to Charter-driven
The real impact of the Charter should be most evident in those areas of public activity that are difficult, complex and require a balance between competing rights, obligations, lawful coercion and safety.
Organisations such as Hanover that work in homelessness regularly deal with circumstances in which breaches of the Charter are possible. Managing the complex nature and behaviour of some clients, combined with the need to ration a scarce resource (subsidised and supported housing) to ensure those in greatest need receive it, presents significant challenges. This reinforces the need for considered policies and procedures in relation to the Charter, particularly if an organisation wants to move beyond basic compliance to a culture of human rights.
For example, a homeless crisis accommodation centre requires the management of a large number of individuals, often with multiple and complex issues such as drug and alcohol dependence issues and mental illness. In addition, many residents may have serious and violent criminal histories and organisations have no capacity (or desire) to access criminal records. Some services offer mixed gender accommodation, creating an even more complex environment to be managed. Clearly, in these circumstances rules and procedures need to be in place to create and maintain a safe environment.
It is entirely possible to do this and be compliant with the Charter. For example, organisations can ensure that all clients are given a copy of the rules on intake as well as a copy of their rights and obligations. Clients should be explicitly told the circumstances when an eviction may occur, what their appeal rights and legal options are if this occurs and where and how to get advice in such circumstances. Similarly, clients should be provided with a copy of the policy as to the exceptions and procedures as to when staff might enter a client’s room.
It is a perfectly reasonable expectation that community organisations delivering homelessness services should comply with the Charter in their day-to-day operations. The Charter rights that warrant special attention by organisations providing homeless services are:
- privacy and reputation
- taking part in public life
- cultural rights
- property rights
- liberty and security of person
- fair hearing
- protection of families and children.
If an organisation wants to move beyond basic compliance towards establishing a culture of human rights they could add approaches that include:
- a regular review, either through survey or focus groups of the level of understanding clients have about their rights and obligations
- reviewing position descriptions and letters of appointments of staff to ensure that their obligations under the Charter are included as well as their rights
- a regular review of rules of the service, involving client representation and consultation
- including Charter compliance and focus in case note audits or other internal audits
- including Charter obligations in case worker supervision practices
- developing a Charter Checklist to be used with any evictions that need to occur
- the Board requiring an exception report or annual report on circumstances where a breach of the Charter occurs
- the Board including Charter breaches in its risk management and mitigation regime.
There will of course be times in such a complex environment where isolated breaches of the Charter will occur. For example, we might exit a client with a history of family violence to another service because his former partner is also staying with us at the same accommodation. In that case, I would be quite comfortable in not revealing the reason for the exit in order to protect the safety of his former partner. These breaches however should be the exception and informed by a clear rationale.
Tony Keenan is Chief Executive of Hanover Welfare Services, a large community organisation that provides services to people experiencing homelessness or in housing crisis. From eight sites across metropolitan Melbourne, Hanover provides a mix of crisis accommodation, short, medium and long term housing, as well as innovative programs to support people into education and employment. Tony Keenan is also Chair of the Australian Foyer Foundation, sits on the Commonwealth Government’s Social Inclusion Board and the Board of Anti-Poverty week.