Introduction

The enactment of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) was a significant development in Victoria’s legal and cultural history. The Charter gives statutory protection for the first time to human rights in Victoria and is only the second such instrument enacted in Australia, the first being in the Australian Capital Territory.

Although the full scope and effect of the Charter is yet to be explored or realised, the foundations of a new human rights’ jurisprudence have begun to be laid. Recently Mr Justice Kevin Bell, President of the Victorian Civil and Administrative Tribunal (VCAT), handed down one of the most significant judgments to date in which the Charter has been applied—Metro West v. Sudi.1 This judgment provides important guidance on how private entities can be bound by the Charter, when carrying out ‘public functions’.

 Application of the Charter

By way of very brief overview, the Charter protects a range of what are broadly regarded as fundamental human rights. The preamble to the Charter makes clear that it was enacted on behalf of the people of Victoria, recognising that all people are born free and equal in dignity and rights. The fundamental rights protected by the Charter include the right to property, the right to privacy and reputation, the right to protection of families and children, the right to protection from torture and the right to freedom of thought, conscience, religion and belief. These fundamental rights are guaranteed to all persons (human beings as opposed to corporations) in the state of Victoria.

The Charter applies to the Parliament, courts, tribunals, ‘public authorities’ and the Crown in its capacities in Victoria. Each must act in accordance with the rights protected by the Charter. Their actions and decisions will be unlawful when incompatible with human rights (subject only to contrary legislation). The Charter does not apply to or bind private persons or corporations, except in so far as they fall within the definition of a ‘public authority’.

Proceedings before VCAT

Metro West Housing Services Limited (Metro West) is a not for profit company which provides transitional housing to those at risk of homelessness. Metro West instituted proceedings before VCAT for orders for possession in respect of houses provided by it to two families who had recently arrived in Australia. The families were served with the notices to vacate under the residential tenancies legislation immediately after taking possession. There was some suggestion that this was standard practice by Metro West, to optimise its flexibility with respect to the transitional housing that it provided, whether or not it intended to immediately retake possession. The families had not secured alternative housing. They maintained that notices to vacate should never have been served on them and orders for possession should not be made by VCAT. The families relied on the Charter in support of their case, asserting that their human rights had been breached, particularly their right to family life, as vacating the accommodation would put at risk the ability of the families to remain together.2

Private company – ‘public authority’?

A key issue that fell for determination before Bell J was whether Metro West was a ‘public authority’ within the meaning of the Charter and accordingly obliged to act consistently with the human rights of its clients when carrying out its business of providing transitional housing.

Bell J considered the meaning given to ‘public authority’ in the Charter, which at section 4(1)(c), is defined as including:

‘an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise)’.

Bell J held that the definition of public authority in section 4(1)(c) was to be widely and generously interpreted. He considered that this approach was confirmed through the guidance offered by section 4(4), which provides that an entity may be acting on behalf of the State or a public authority, even if there is no agency relationship between the entity and the State or public authority. He held that in determining whether an entity is a public authority under the Charter, it is necessary to examine two questions:

  1.  whether the functions exercised are of a public nature, and
  2. whether those functions are being exercised on behalf of the State or a public authority.

In examining these questions, Bell J said that there was no universal test and every case must be considered on its own facts and merits. He said that the focus of the definition in section 4(1)(c) was on matters of substance, not form and legal technicalities.

Why Metro West was a public authority

Metro West was a private company limited by guarantee. It was independent of and not established or controlled by the government. It was managed by a board of directors with no government representatives. Bell J observed that Metro West was an independent contractor and that at no time was it acting as the agent of the government. It had a service agreement with the government, to provide transitional housing to eligible people and families, who were awaiting allocation of public housing or trying to find accommodation for their long term needs. To assist it in providing this service, Metro West received block annual funding from the government.

Bell J held that the issue of whether a function is of a public nature requires attention to be paid to the nature of the function, not the entity exercising it. He noted that providing social housing to people at risk of homelessness is an important function which government exercises on behalf of the community in the public interest—in fact, he described the provision of housing to such a vulnerable group of people as a ‘vital function of government’. Accordingly, the function of providing social housing, which includes the management of transitional housing tenancies, was held to be a function of a public nature.

Bell J held that Metro West, when exercising the function of providing and managing transitional housing under its service agreement with the government, was a ‘public authority’ for the purposes of the Charter. Accordingly, it fell to Metro West to demonstrate that it was acting compatibly with Charter rights, when issuing notices to vacate or in seeking orders for possession.

Impact of the judgment

The judgment of Bell J illustrates the significance of the Charter and its potential application to bind entities other than those which are strictly ‘public’. The Victorian Government, like all state governments in Australia, delegates and contracts out a large number of its varied functions to a range of private entities. In Victoria, where an entity exercises functions of a public nature and those functions are being exercised on behalf of the State or a public authority, that entity will be a ‘public authority’ for the purposes of the Charter. The result—the entity will be bound by the Charter and its actions and decisions will be unlawful when incompatible with the human rights protected by the Charter. This will no doubt come as a surprise to many and require active consideration of their Charter responsibilities in discharging their ‘public’ functions.