A very Charter Christmas

shacIt must be the silly season, because why else would The Age cover the Charter?:

STUDENT squatters will try to use Victoria’s charter of human rights to stop their eviction from Melbourne University-owned buildings. The students — who have been occupying the Faraday Street terrace houses in Carlton for the past four months — were summonsed to appear in the Victorian Supreme Court yesterday for an eviction hearing. The Student Housing Action Collective want to use the terraces to create a student housing co-operative, but the university wants to develop it into off-campus student space.

Teishan Ahearne, from the collective, accused the university of using the Christmas break to move against the squatters. “The university is playing Mr Scrooge, attempting to evict homeless students on the eve of Christmas. Their actions are utterly unjust and sneaky,” she said. Yesterday the court heard that the university had begun the proceedings to comply with a building notice issued by the City of Melbourne. That notice said the buildings had to be vacated by January 7.

But Chris Povey, for the students, said his clients would seek to invoke Victoria’s charter of human rights to prevent the university from moving them on. He told the court that should the students be evicted many of them faced homelessness. Justice Cavanough agreed to adjourn the hearing to January 5, but ordered any applications under the human rights charter had to be filed with the court by December 30.

So, the students can spend Christmas in their terrace houses, but, thanks to nasty Charter s. 33 and Practice Note No. 3, they’ll have to spend their holidays swatting up on the Charter.

Alas, as I’ve discussed several times on this blog, the intersection of tenancy law and human rights law is a perfect storm of the Charter’s curmudgeonly operative provisions:

  • First, the students need to find a right that has been breached. In conrtast to some of the more heartrending (or maddening) human rights tenancy cases of yore, this one doesn’t seem to involve any families or kids, so Charter s. 17 won’t help. Nor are there discrimination issues. So, everything will have to rest on the narrow shoulders of Charter s. 13(a)’s right against arbitrary interferences in the ‘home’.
  • Second, there’s the problem that the Residential Tenancies Act‘s statutory language isn’t exactly amenable to re-interpretation to prevent ‘eviction into homelessness’. And there’s also the problem that any such friendly interpretation will be contrary to the rather unfriendly purposes of statutory tenancy law (and, if Hansen rules, may go further than the reasonable limits jurisprudence allows.) (I’ll take the students’ word that they have nowhere to go, though it does remind me of some former friends from my uni days who stole from the Salvo’s. ‘Who’s poorer than us?’, they asked. Fortunately, they both have jobs in top overseas unis now. Maybe that theft let them crawl out of the poverty spiral.)
  • Third, there’s the conduct mandate route. But: (a) is the Uni a public authority?; (b) is eviction incompatible with the Charter right against arbitrary interference in the home?; (c) does the RTA provide the uni with Charter s. 38(2) cover? (d) is relief against eviction one of the non-Charter remedies that can squeeze through the thicket of Charter s. 39?

Bah humbug!. But at least the students may emerge (from their studies and their terrace houses) with some very handy expertise on the limits to Victoria’s Charter….

(Charterblog will, unsurprisingly, go quiet for a couple of days. Alas, there’ll be some more surprising quiet not too long after that. See the flurry of posts around New Years’ Eve….)

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