The Law Handbook 2024

538 Section 6: Houses, communities and the road However, the direct obligation applies to VCAT where it is acting in an administrative capacity; for example, when VCAT is exercising its residual discretion in a proceeding for the creation of a rental agreement (see Giotopoulos v Director of Housing [2011] VSC 20). In Goode v Common Equity Housing Ltd (Human Rights) [2016] VCAT 93 (21 January 2016), a VCAT member observed: The provision of social housing and the prevention of homelessness is a function of government of fundamental importance. It is not at the margins but at the centre of what the community generally expects governments to do. While the methods of provid[ing] social housing ... may vary, there is a strong public interest in the government making necessary arrangements for this to be done. Accordingly, VCAT affirmed that ‘the definition of “public authority” must be given a wide and generous interpretation’ and determined that ‘the functions being exercised by Common Equity Limited are functions of a public nature’. VCAT went on to state that a public function is one that ‘is connected to or generally identified with functions of government … and is being performed in the broader public interest’. (See also AVW v Nadrasca Ltd (Residential Tenancies) [2017] VCAT 1462 (13 September 2017).) This decision does not mean all social housing providers are bound by the Human Rights Charter, but it provides a strong foundation to argue that most government-supported social housing providers should be bound by it (s 38) and act accordingly. A failure to do so may render them subject to judicial intervention on application by an aggrieved renter or resident. However, in Durney v Unison Housing Ltd [2019] VSC 6 (8 February 2019), the Supreme Court further examined the question of what types of decisions are amenable to judicial review and when public law remedies can be granted against private bodies such as community housing. The court narrowly construed when a public duty or function involves a ‘public element’. This public element test was measured against the exercise of an identifiable statutory power and whether such an exercise was in the course of performing a public duty. The court considered the public element to include procedural fairness as a relevant interest if the exercise of that power was ‘capable of having an adverse effect on legally recognised rights or interest’. In this matter, the applicant was unsuccessful because the relevant Notice to Vacate was already withdrawn and the community housing provider was found to be reasonable in requiring contact by certain means that did not remove their other relevant public rights. In 2021, the Parliamentary Inquiry into Homelessness in Victoria made the following recommendations: • community housing providers should be recognised as public authorities for the purpose of the Human Rights Charter (recommendation 32); • VCAT should be given power to determine if evictions by social housing providers are compliant with the Human Rights Charter (recommendation 33); and • a right to housing should be included in the Human Rights Charter (recommendation 34). However, the issue of quasi-public authorities and administrative accountability remains a live issue and is referred to as the ‘datafin’ principle (see Vergara v Chartered Accountants ANZ [2021] VSC 34 (23 February 2021)). Eviction: Judicial intervention In the case of Burgess v Director of Housing [2014] VSC 648 (17 December 2014) (‘ Burgess case ’), the court determined that there are two decisions to be made when a public authority seeks to evict a person. Both decisions require proper consideration of the Charter rights of the renter and any other members of the household (e.g. children). This includes proper consideration of the health and the likely impact of the eviction on the individuals. The first decision, which is reviewable by the Supreme Court, is the decision to issue the Notice to Vacate. The second decision (once VCAT grants a possession order) is the decision to purchase and allow the warrant to be executed against all the occupants of the household. In relation to the first decision, the public authority should show proper consideration of the Human Rights Charter, follow their own policy, and afford procedural fairness and natural justice to the people being directly affected by the Notice to Vacate. This may include an interview before the Notice to Vacate is served. Parties should record these interviews. In the Burgess case, the court determined that once VCAT had made the first decision (to grant a