In November 2008, the Centre was granted leave to appear as amicus curiae in a matter concerning the meaning of ‘public authority’ under the Victorian Charter. This is a question of great significance, as it is public authorities who are bound to act compatibly with and give proper consideration to human rights. The issue arose in the context of an application by Metro West Housing Services Ltd, a private non-profit company, for orders of possession against two groups of vulnerable tenants.
Section 4(1)(c) provides that, for the purposes of the Charter, a public authority includes ‘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)’.
The Centre submitted that while ‘there cannot be a single litmus test of what is a function of a public nature’ (see YL v Birmingham City Council [2008] 1 AC 95 at [65] per Baroness Hale), a number of principles should guide the Tribunal’s consideration of s 4(1)(c):
- First, consistent with the underlying purpose of the Charter, the section should be given a broad and generous interpretation.
- Second, the Tribunal should focus on the function being performed, rather than the nature of the organisation exercising the function. The Centre noted that a function will be either public in nature or it will not; the nature of the function does not change depending on the nature of who is performing it.
- Third, the relationship between the organisation and the state may be relevant, but only to the extent that it indicates whether the function is being exercised on behalf of the State.
- Fourth, what constitutes a function of a public nature is a question of substance, not form or technical legal distinction.
Accordingly, the Centre submitted that the underlying rationale of s 4(1)(c) is that an entity should be a public authority, and therefore bound to act compatibly with human rights under s 38 of the Charter, where:
- it is performing a function for which the public, in the form of the State or a public authority has, in a broad sense, a responsibility in the public interest to see performed; and
- it is doing so pursuant to a loosely connected arrangement whereby it is acting as the agent, delegate or representative of, or merely carrying out the purposes of, the State or a public authority.
See: Submission of Human Rights Law Resource Centre dated 5 November 2008
In a landmark decision on 9 October 2009, Bell J, President of VCAT, declared that Metro West is a public authority bound by the Charter (see Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025). This decision has significant implications for the operation of the Charter in respect of private entities – both commercial and non-profit – providing services of a public nature.
Consistent with the submissions of the Centre, Bell J held that the definition of ‘function of a public nature’ should be interpreted and applied widely and generously with the Charter’s purposes in mind, including the protection of vulnerable individuals and groups. He further held that the focus of the inquiry should be on the function being performed, rather than the nature of the organisation exercising that function or the relationship between the organisation and the state per se.
Applying these principles in the present case, Bell J found that the provision of social housing to people at risk of homelessness is an important function which government exercises on behalf of the community in the public interest:
Disadvantaged people in need of social housing and at risk of homelessness are among the most vulnerable in the community. Their human rights are imperilled by their circumstances.
His Honour concluded that the function of providing social housing, which includes the management of transitional housing tenancies, is a function of a public nature. Bell J also considered the terms of the service agreement between Metro West and the state, and the governance structure of Metro West, concluding that Metro West was responsible under the agreement to the government for the provision of social housing to people at risk of homelessness, and was publicly funded to do so.
The Centre was provided with outstanding pro bono assistance in this case by Freehills (Jennifer Riley and Malcolm Cooke), together with Ron Merkel QC and Alistair Pound of Counsel. The tenants were represented on a pro bono basis by the PILCH Homeless Persons’ Legal Clinic and the Tenants’ Union of Victoria.
