The Charter vs landlords

The always excellent bulletin of the Human Rights Law Resources Centre is now out, in its June edition. The Bulletin has many Charter-related pieces, including:

  • an analysis of the Statement of Compatibility of the Public Health and Wellbeing Bill 2008, with a particular focus on the compelled examination and control of people who may have infectious diseases. (I blogged about SARC’s call for submissions in relation to that bill here; unfortunately, the newsletter didn’t mention that…)
  • casenotes on Victoria’s Unberbelly case (blogged about too many times here) and comparative notes on decisions concerning remandees, non-oral hearings, the House of Lords case on inquiries into the Iraq war (blogged about here), evictions, the right to privacy of JK Rowling’s toddler (cool!) and the second ACTHRA case of the year (on adoption.)

But, most interestingly, there was a lengthy discussion of an otherwise unpublicised use of the Charter in a Victorian eviction case. It concerned the following provision:

263(1) A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice.

Acting for a tenant – a pregnant single mother to two young children – who received such a grim notice from a community housing landlord, PILCH made two arguments to the effect that evictions into homelessness are now forbidden in Victoria:

  • applying Charter s32(1) – and, I think, Charter s. 13(a)‘s right not to have your ‘home’ arbitrarily interfered with – they argued that the entire clause should have the following words added: ‘if reasonable to do so in the circumstances and if to do so is compatible with the Charter.’
  • applying Charter s38(1), the argument is that the landlord – a registered rental housing agency under the Housing Act 1983 – is a ‘functional’ public authority (presumably under Charter s4(1)(c)) and, therefore must consider the rights of the tenant and her kids (presumably under Charter ss. 13(a) and 17(2).)

Neither of these arguments is particularly appealing. The first strikes me as a UKHRA approach to ‘interpretation’ – reading words in that dramatically alter what a provision does – which seems to ignore the much narrower scope of Charter s. 32(1); the Charter lacks the UK’s ‘give effect to’ language and instead has ‘consistently with the purpose’ langauge. The second is less extreme, although there’s – as always – no mention of Charter s. 38(2). But I’m mainly concerned about the argument that a registered housing agency is a functional public authority. I’m not quibbling with whether or not ‘housing’ – at least community housing – is a public function under Charter s. 4(2) – which is all the note discusses – but rather whether the agency ‘is exercising those functions on behalf of the State or a public authority’. Again, that caveat does not appear in the UK HRA. Without more information, it’s hard to know whether this claim has legs or not. Anyway, apparently as a result of these submission,the eviction notice was withdrawn (with VCAT’s consent) and everyone was told to attend a compulsory conference to discuss the future. That’s nice, of course, but I am worried that PILCH’s legal claims have not been tested. Is this an example of the landlord seeing the light of the human rights culture, or just being scared into submission by a bunch of well-meaning lawyers making strong claims about a (for now) very ambiguous law? That’s a quite different sort of culture…

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