Goode v Common Equity Housing  VSC 585 (21 November 2014)
The Supreme Court has confirmed that a person seeking redress for a breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is able to obtain relief or remedy based on Charter unlawfulness, even where their non-Charter claim is unsuccessful or not determined.
The decision concerns the interpretation of section 39(1) of the Charter, which specifies when the Charter can be raised in legal proceedings.
Under section 38 of the Charter, it is unlawful for public authorities to act in a way that is incompatible with human rights or to fail to take relevant human rights into account when making a decision.
The Charter does not create a new cause of action for a breach of these obligations but links relief or remedy for unlawfulness under the Charter to pre-existing relief or remedy. This is set out in section 39(1), which says:
If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
The applicant in this case was a tenant of a property owned by Common Equity Housing Limited, a not for profit registered housing association that provides affordable rental properties to low income earners in Victoria.
The applicant brought a claim in the Victorian Civil and Administrative Tribunal that, in managing her tenancy, Common Equity Housing discriminated against her on the basis of her disability. She sought the relief or remedy under the Equal Opportunity Act 1995 (Vic) and the Equal Opportunity Act 2010 (Vic) of an apology, compensation and a transfer of property ownership.
She also sought relief or remedy on the ground that Common Equity Housing, which she said was a public authority under the Charter, had acted incompatibly with human rights in breach of its obligations in section 38 of the Charter.
The Tribunal rejected the discrimination claims and dismissed the application. The Tribunal held that it did not have jurisdiction under section 39(1) of the Charter to consider the applicant’s claims of Charter unlawfulness on the basis that the applicant’s claims of discrimination had not been established. (See Goode v Common Equity Housing Limited (Human Rights)  VCAT 2188).
The applicant appealed to the Supreme Court, arguing that the Tribunal erred in ruling the Charter claims were beyond its jurisdiction once it had rejected her discrimination claim.
The Victorian Equal Opportunity and Human Rights Commission intervened under section 40 of the Charter and submitted that the Tribunal erred in ruling the Charter claims were beyond its jurisdiction.
Justice Bell held that the Tribunal erred in its finding it did not have jurisdiction to consider a person's Charter claim where their non-Charter claim was unsuccessful. The Tribunal should have decided that it had the jurisdiction under section 39(1) of the Charter to determine whether the relief or remedy sought by the applicant based on unlawful discrimination should be granted on a ground of unlawfulness because of the Charter. His Honour said that this jurisdiction under section 39(1) ‘is an important means of giving effect to and vindicating the human rights in the Charter.’
The section 39(1) condition for raising a ground of Charter unlawfulness was broadly interpreted:
For the purposes of s 39(1), it is perfectly apt to describe as ‘unlawful’ an act or decision that is prohibited or proscribed by, or contrary to, a statutory provision or the common law or that is inconsistent with a norm or standard prescribed in such a provision or law. Here the relevant acts were prohibited by statute and thus ‘unlawful’ for the purposes of s 39(1).
Where this condition is satisfied, Justice Bell held that section 39(1) only permits relief on the grounds of Charter unlawfulness to be granted in respect of the same act or decision for which the person was entitled to seek a remedy on grounds of non-Charter unlawfulness.
The applicant succeeded in her appeal on the basis that the Tribunal failed to exercise its jurisdiction under section 39(1). Justice Bell set aside the Tribunal’s decision and remitted the proceeding to the Tribunal to consider the Charter claims.
This decision confirms that a claim a public authority has acted unlawfully under the Charter can be attached to a discrimination claim under the Equal Opportunity Act and, in such cases, the Tribunal can consider and grant relief or remedy in respect of a person’s Charter claim. This is the case even where the non-Charter claim does not succeed.
This decision, in its clear consolidation and examination of Victorian decisions regarding raising claims of Charter unlawfulness, will be useful for practitioners seeking to raise the Charter in legal proceedings.
The full decision can be viewed here.
Gudrun Dewey is a Senior Legal Adviser at the Victorian Equal Opportunity and Human Rights Commission.