Goode v Common Equity Housing Ltd [2014] VSC 585 – Tribunal obliged to consider whether conduct of social housing provider was contrary to the Charter of Human Rights and Responsibilities Act 2006 in relation to alleged discrimination in the provision of social housing to a tenant.

The content, operation and nature of the right conferred by section 39(1) of the Charter of Human Rights and Responsibilities Act 2006 (the "Charter")for an applicant to seek remedies for a breach of the Charter was considered by Justice Bell of the Victorian Supreme Court in an application for leave to appeal made by a social housing tenant against a decision of the Victorian Civil and Administrative Tribunal [1] (the "Tribunal").  The Tribunal had earlier rejected the Appellant’s discrimination claim (under the Equal Opportunity Act 1995 and 2010) against Common Equity Housing Ltd ("CEHL"), a not-for-profit registered housing association that provides affordable rental properties to low-income earners in Victoria.

The Appellant, Ms Goode, has been a tenant of a property owned by CEHL since 2008.  Prior to that, she was the tenant of a tenant managed common equity rental cooperative, Access CERC.  Access CERC is one of many co-operatives who manage properties owned by CEHL. Whether CEHL was, in fact, a public authority was not argued before the Tribunal or the Supreme Court.

The Appellant’s claim before the Tribunal was that CEHL had discriminated against her on the basis of her disability (Post Traumatic Stress Disorder) by allegedly forcing her to give up her voluntary employment as a maintenance director for Access CERC, forcing her to resign from Access CERC, forcing her to become a tenant of CEHL through Vic-wide (CEHL’s direct tenancy arm) and making applications to the Tribunal to repair a boundary fence and carry out periodic inspections of the property. 

In addition to the discrimination grounds, the Appellant had sought relief on the ground that, as a public authority, it had violated her rights under the Charter.  The Tribunal dismissed the discrimination claim but did not consider the Charter argument, finding that it did not have jurisdiction because it had already dismissed the discrimination claim.

In upholding the Appellant’s appeal and remitting the matter back to the Tribunal for determination on the limited questions relating to the Charter, His Honour Justice Bell concluded that the Tribunal had erred in law.  In doing so, His Honour considered the operation of section 39(1) of the Charter and found that the Tribunal had fallen into error by not considering the Charter argument.  His Honour found that the Tribunal’s reasoning was that “…for the jurisdiction of section 39(1) to be available in a proceeding based on the unlawfulness of an act or decision on non-Charter grounds, those grounds must be successfully established”.  However, after His Honour considered the recent relevant authorities [2] and section 39(1) of the Charter, he found that “The tribunal does not lose that jurisdiction because, when application is actually made seeking relief or remedy on a ground of non-Charter unlawfulness, that ground is not determined or rejected”.

His Honour carefully considered whether the Tribunal’s decision could be interpreted in a way that was consistent with its obligation under section 39(1) but concluded that it had considered itself relieved of the responsibility to exercise the jurisdiction in section 39(1) because it had rejected the discrimination claim and in doing so had erred.

His Honour heard arguments from the representative of CEHL and the Victorian Equal Opportunity and Human Rights Commission (the "Commission") about the extent of the right to seek a grant of relief.  His Honour found that section 39(1) was not designed to create a new cause of action, but rather to enable a person to seek relief or remedy in respect of a decision where he or she has an independent entitlement to seek such relief or remedy on the grounds of the Charter unlawfulness.

This aspect of the decision is significant as it restricts the decision maker to considering whether the act or decision of the public authority which is before the Court on another matter may be unlawful under the Charter.  It does not create a right for a Charter based review of other acts or decisions falling outside a non-Charter cause of action.

As a result, His Honour remitted the matter back to the Tribunal to decide whether the actions complained of by the Appellant in her discrimination claims enlivened section 39(1) of the Charter.

It is now clear that where a body, which may be seen to be a public authority or which carries out a public function, is involved in a proceeding for any other remedy, parties, lawyers and decision makers must have regard to the lawfulness of the decision under the Charter.