Charting a Stronger Course: Homeless Law submission to the eight year Charter review
Justice Connect Homeless Law has made a submission, Charting a Stronger Course, to the 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).
The submission identifies how Homeless Law has seen the Charter working well to protect the human rights of Victorians who are homeless or at risk of homelessness, as well as those areas where there are opportunities to strengthen the Charter’s effectiveness.
Charting a Stronger Course summarises 21 Homeless Law matters where the Charter was used to identify viable alternatives to eviction and to avoid imprisonment for unpaid fines. This work prevented a total of 37 people, including 21 children, from being evicted from social housing into homelessness.
The submission contains four key points and recommendations regarding the Charter’s current operation and measures to improve the protection of human rights in Victoria:
- Clarity about who is covered by the Charter – In the housing sector, there is ongoing uncertainty about whether community housing providers are public authorities under the Charter. This uncertainty is a barrier to the incorporation of the Charter in the day-to-day work of community housing providers. Homeless Law recommends that housing providers registered under the Housing Act 1983 (Vic) are confirmed to be public authorities for the purposes of the Charter and are supported with training and resources to adopt Charter-based policies and practices.
- Meaningful human rights accountability – Since the decision of Director of Housing v Sudi  VSCA 266 (Sudi), VCAT does not have jurisdiction to consider whether a social landlord has complied with its obligations under section 38 of the Charter in eviction proceedings, and any questions about Charter compliance in eviction matters must be considered by the Supreme Court. This has reduced the preventative role of the Charter, slowed the practical guidance provided by Charter-based decisions, and diminished protection and accountability in the event of non-compliance. Homeless Law recommends that the Charter is amended to expressly confer jurisdiction on VCAT to hear and decide Charter unlawfulness under section 38 by way of defence in tenancy proceedings brought by social landlords. Homeless Law also supports the amendment of section 39 of the Charter to create an independent cause of action and remove the confusion currently attached to the requirement to ‘piggyback’ a Charter argument on another cause of action.
- Building Victoria’s human rights culture through education and training – Education and training about the Charter and how it operates in practice has stalled and human rights are not at the forefront of decision-makers’ minds in Victoria. Increased education, resources and training are needed for frontline staff in public authorities, and for courts, tribunals and members of the community. The ongoing delivery of relevant, practice-based training will continue to entrench human rights in day-to-day activities and decision-making and, in doing so, will lead to improved services and better outcomes for all Victorians.
- Protecting and promoting all human rights – Economic and social rights – including rights to an adequate standard of living (e.g. adequate food, clothing and housing), education, and the highest attainable standard of physical and mental health – are the rights that matter most to many Victorians. Homeless Law recommends that economic and social rights should be protected by the Charter, so that they are considered by Parliament when making laws, by public authorities when making decisions and by courts when interpreting laws. Protection and promotion of these rights is an important part of creating a fair and just Victorian community.
Homeless Law’s submission identifies that these changes have significant potential to generate a clearer, more robust and accessible framework for protecting human rights in Victoria and states: ‘the modest changes proposed will set the Charter back on course for improving laws, decisions and lives in Victoria’.
The 2015 review is looking at ways to enhance the effectiveness of the Charter and improve its operation. The independent reviewer, Michael Brett Young, is required to report to the Attorney-General by 1 September 2015. Further information about the review process and all public submissions can be found on the 2015 Review of the Charter of Human Rights website.