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Pro bono: Charter out of bounds

Every Issue

Cite as: November 2011 85(11) LIJ, p.77

A limitation on VCAT's human rights jurisdiction is a blow to access to justice.

A recent Court of Appeal decision is likely to have significant implications for access to justice and the need for pro bono assistance in Victoria. In Director of Housing v Sudi,1 the Court of Appeal held that VCAT does not have jurisdiction to review whether a decision by the Director of Housing to evict a tenant from public housing complied with the Director’s legal obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court of Appeal’s decision comes as the state government considers a review of the Charter after its first four years of operation.

Warfa Sudi is a Somalian refugee who was living in public housing with his three-year-old son. The tenancy agreement for the home was originally made with Mr Sudi’s mother, who had become unwell and died. Mr Sudi and his son continued to occupy the premises after her death. The Director of Housing issued a notice to vacate the premises and made an application to VCAT for a possession order pursuant to s344(1) of the Residential Tenancies Act 1997 (Vic).

Mr Sudi, relying on the Charter, argued that the Director’s application amounted to a serious infringement on his right to privacy, family and home. The Director conceded that as a “public authority” she was required to appropriately consider human rights. However, the Director argued that VCAT did not have jurisdiction to consider whether she had complied with the Charter.

While at first instance Bell J determined that VCAT had jurisdiction to consider issues relating to the Charter, in a unanimous decision the Court of Appeal ruled that VCAT does not have the power to review the lawfulness of the Director’s decision to make an application for a possession order. This effectively means that VCAT must assume that the Director’s decision to apply for a possession order is valid and cannot consider whether the Director has complied with her legal obligations under the Charter.

This decision is likely to have implications for access to justice and for lawyers providing pro bono assistance to people who are facing eviction from public housing. Individuals will now be forced to seek judicial review in the Supreme Court if they wish to challenge a decision by the Director of Housing to apply for a possession order. This outcome raises issues for individuals seeking access to justice for any failures by public authorities to give appropriate consideration to relevant human rights. As a no-cost jurisdiction, VCAT provides tenants with an important and accessible forum to raise human rights concerns. Indeed, the Chief Justice herself comments that the Supreme Court is a “different and less accessible forum”.

The Court of Appeal’s decision is also likely to place a greater burden on lawyers providing pro bono assistance to tenants who are facing eviction. In his judgment, Weinberg JA considered that the impact of this decision “is hardly likely to be catastrophic”. His Honour opines that the legal profession in Victoria “has shown a ready willingness to provide assistance, often through legal aid or pro bono, in proceedings that give rise to legitimate Charter issues”. While such a statement may have validity – indeed, the contribution of pro bono lawyers to ventilate Charter issues before courts and tribunals has been significant – such a view seems to fail to appreciate that pro bono assistance is not a limitless resource.

The state has an obligation to ensure that all individuals are able to access an effective remedy. Pro bono services cannot be expected to fill the gap left by a legal system that renders remedies inaccessible and ineffective. The Court of Appeal’s decision in Sudi limits the ability of individuals to raise human rights considerations in Victoria’s most accessible forum. A requirement to take such issues to the Supreme Court is likely to be a significant disincentive for many individuals.

The State Government’s review of the Charter presents a timely opportunity to ensure that decisions about human rights considerations can be reviewed in an appropriate and accessible way. The Charter could be amended to include a free-standing cause of action for breaches of human rights that is justiciable and enforceable in the appropriate court or tribunal, including VCAT. Decisions by public authorities, including to evict people from public housing, can constitute a severe infringement on human rights. Accessible and effective remedies must be available to ensure that such decisions properly consider and respect human rights.



Jane Coventry is a graduate and Ben Schokman is a Senior Associate with DLA Piper, on secondment to the Human Rights Law Centre.

1. [2011] VSCA 266.

Looking to help?

To help lawyers and firms become involved in pro bono work – legal services and otherwise – the LIJ profiles a community group and its needs each month.

The Warwick Foundation

Contact: Jade McKenzie

Email: jade@thewarwickfoundation.org.au

Location: Melbourne

The Warwick Foundation is Australia’s first and only charitable foundation supporting young adults aged 18-40 on their cancer journey. The programs are based on the concept of wellbeing and are about the whole person; not just the treatment of cancer.

Its work is underpinned by a social model of health with a belief in not just the absence of cancer but a return to wellness for young adults that takes into account their physical, social and mental wellbeing.

Current needs of group

The Warwick Foundation is seeking to establish a Development Committee that will provide the Foundation with high level support and assistance, particularly in the areas of fund and awareness raising and relationship development in the corporate and community sectors. Membership of this committee will consist of high level professional people who have an interest in “giving back” at a level that is fitting for their level of expertise and knowledge. Meetings will be held bi-monthly on a Tuesday in South Yarra from 6.30 – 8pm and will require assistance and follow-up according to the tasks agreed upon.

goodcompany

See goodcompany at www.goodcompany.com.au for more information on this and other skilled volunteering opportunities. For more information about volunteering in general, see also:

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