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Proceedings SC 409 of 2022 Yvette Van Loo (Plaintiff) The Commissioner for Social Housing (First Defendant) D2 (Second Defendant) D3 (Third Defendant) D4 (Fourth Defendant) ACT Human Rights Commissioner (Intervenor)

Proceedings SC 410 of 2022 Faye Irwin (Plaintiff) The Commissioner for Social Housing (Defendant) ACT Human Rights Commissioner (Intervenor) Representation: Counsel P Tierney with G Cafarella (Plaintiffs) A Berger KC with B Kaplan (Defendants) K Evans (Intervenor) Solicitors Ken Cush & Associates (Plaintiffs) ACT Government Solicitor (Defendants) ACT Human Rights Commission (Intervenor) File Numbers: SC 408 of 2022 SC 409 of 2022 SC 410 of 2022 McWILLIAM J: Overview of the proceedings

1. The three plaintiffs in these three proceedings all live in public housing in the Territory, leasing properties provided by the ACT Commissioner for Housing. At the time of the hearing, they had done so for between 27 and 42 years. Each plaintiff was subject to a decision requiring her to transfer to another public housing dwelling. They each challenged the decisions which brought about the need to transfer, whether that was the initial decision to sell or redevelop the property in which each lived as part of a policy of renewal, or in the case of two of the plaintiffs, the subsequent decision refusing an exemption from that policy. The plaintiffs argued that the decisions were unlawful for a variety of reasons, including that the decisions breached their human rights in a number of ways.

2. The plaintiffs have succeeded in establishing the unlawful nature of the decision, because there was a denial of procedural fairness and a failure to give proper consideration to their human rights. These reasons explain that conclusion.

The parties and the nature of these proceedings

3. In these reasons, the plaintiffs will be identified for ease of reference as follows: (a) Ms Katarina Hubzin (first plaintiff); (b) Ms Yvette Van Loo (second plaintiff); and (c) Ms Faye Irwin (third plaintiff).

4. The first and second plaintiffs each sought judicial review and brought separate statutory causes of action created by the Human Rights Act 2004 (ACT) (Human Rights Act). The third plaintiff only sought declaratory relief under the Human Rights Act. The matters were consolidated and heard together by consent of the parties, with the consequence that only one judgment will be given in the consolidated proceeding: r 270 of the Court Procedures Rules 2006 (ACT) (Rules).

5. The first defendant in each proceeding is the Commissioner for Social Housing (Commissioner). The Commissioner is the only defendant in the Irwin proceeding.

6. The first and second plaintiffs also sought relief against individual defendants. Those defendants were either decision makers who refused the first or second plaintiff’s application for their properties to be exempted from the application of the policy, or were part of the Growth and Renewal Exemption Panel (Panel) who reviewed and refused the plaintiffs’ requests for an exemption of their properties from the policy.

7. The Human Rights Commissioner (Intervenor) intervened in each proceeding.

The conduct challenged by the plaintiffs

8. The catalyst for each proceeding was a policy titled the ACT Growing and Renewing Public Housing Program (the Program). The objective of that policy was to create more public housing in the Territory, either by using the money from the sale of existing properties or by redevelopment of those sites.

9. The Program appears to have been implemented in part through a disallowable instrument made under s 19(1) of the Housing Assistance Act 2007 (ACT) (Housing Act), namely the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) (ACT) (2013 Instrument), which has since been repealed. For each plaintiff, a decision was made under cl 28(2) of the 2013 Instrument. It provided: (2) The housing commissioner may require a tenant of the housing commissioner to transfer to another public housing dwelling for the purpose of repair, renovation, disposal or redevelopment of the dwelling occupied by the tenant.

10. Relevantly here, a decision of the housing commissioner to require a tenant to transfer under that subclause was “not a reviewable decision”: cl 28(3) of the 2013 Instrument.

11. Between 2020 and 2022, decisions were made to include the properties in which each of the three plaintiffs resided in the Program, as follows: (a) In the case of first plaintiff, the decision dated some time prior to 21 February 2022. (b) In the case of the second and third plaintiffs, each decision was made on 23 December 2020 (collectively, the initial decisions).

12. By their inclusion in the Program, those properties were designated to be sold to the private market or redeveloped.

The personal driver behind the dispute

13. At the heart of each proceeding was the fact that each plaintiff had been a tenant in the same public housing residential dwelling for many years. Although the plaintiffs were renting, that did not change the fact that they had become very established in, and attached to, their homes. One was approaching retirement age and the other two were well into the later years of their lives, where moving was going to be considerably more difficult.

14. In the Territory, the concept of a person’s home as being inviolable, or fundamentally protected from unlawful or arbitrary interference, is recognised in s 12 of the Human Rights Act (emphasis added): 12 Privacy and reputation Everyone has the right— (a) not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and (b) not to have their reputation unlawfully attacked.

15. The crux of the dispute here was really whether the Commissioner, their delegates or agents could lawfully force the relocation of the plaintiffs, either in the manner in which the decision-making process occurred, or at all.

16. It need hardly be said that any interference with one’s home must be lawful. That pithy one-liner in The Castle (1997), voiced in the fictional character of Darryl Kerrigan, still resonates: It’s not a house, it’s a home. A man’s home is his castle … You can’t just walk in and steal our homes.

17. While a different legal protection was at stake there (s 51(xxxi) of the Commonwealth Constitution), the sentiment was the same and those words have deep roots. Expressions of a person’s connection to their home stem back to at least Roman times, when Cicero (the Roman statesman and lawyer) wrote: What more sacred, what more strongly guarded by every holy feeling, than a man's own home?

18. The sanctity of one’s home was later recognised in law, with Sir William Blackstone quoting Cicero in the Commentaries on the Laws of England (Book 4, Chapter 16), there-stating: And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity.

19. To understand that sentiment is to understand what this case was really about for these plaintiffs. Accepting that the demands on public housing are many and the decisions of those who manage such resources are multifactorial, what these plaintiffs feared was not necessarily that they would be left without a roof over their heads (although that was a possibility if they did not cooperate with the Commissioner), but that in relocating they would lose their homes.

20. The plaintiffs thus came to court, arguing that what may have otherwise been prudent asset management decisions were also decisions made without any regard for the people living in those assets and what those decisions meant for each of them.

An extension of time in which to commence proceedings is necessary

21. For the judicial review aspects of the proceedings, an originating application must be filed not later than 60 days after the day when the grounds for the grant of relief sought first arose: r 3557(2) of the Rules. An extension of time may be granted in special circumstances: r 3557(4) of the Rules.

22. For the actions brought under the Human Rights Act, the proceeding must be commenced not later than one year after the last day the act complained of happens, unless the court orders otherwise: s 40C(3) of the Human Rights Act.

23. The first plaintiff commenced proceedings on 26 October 2022. In circumstances where the initial decision was made some time prior to 21 February 2022, her proceedings were out of time insofar as they sought judicial review, and potentially out of time with regard to the human rights claim. No extension is required in respect of the decisions to refuse to exempt the property from the Program, because those decisions occurred between 8 March 2022 and 16 June 2022 (with a confirmation of the decision formally notified at the correct address on 11 July 2022) and the proceeding was commenced within 12 months from the last day the act complained of happened.

24. The second plaintiff commenced proceedings on 26 October 2022. The initial decision occurred on 23 December 2020. A letter in relation to this decision was purportedly sent on 10 December 2020, although apparently was not received by the second plaintiff. Subsequent confirmation of that decision was provided to the second plaintiff in a letter dated 29 November 2021 and I have taken that date as the established date of notification. Significantly, that letter did not explain the consequence of that decision for the second plaintiff, which was that she had to move. It was only on 21 February 2022 that she was notified of the requirement to move. The decision to refuse to exempt occurred on 14 July 2022, and written notification was provided on 26 July 2022. Again, in respect of the second plaintiff: (a) An extension of time was required in respect of the judicial review aspect of the application; (b) An extension was potentially required in respect of the human rights claim based on the initial decision; and (c) In respect of the subsequent exemption decisions, no extension was required.

25. The third plaintiff commenced proceedings on 26 October 2022. As with the second plaintiff, the initial decision occurred on 23 December 2020. A letter was purportedly sent to the third plaintiff on 10 December 2020, although again, this letter appears not to have been received. The fact that two unrelated plaintiffs gave sworn unchallenged evidence that they never received any letter dated 10 December 2020 caused me to doubt that those letters were ever sent, particularly when the initial decision was only made on 23 December 2020. However, the third plaintiff did subsequently receive notification of the decision on 29 November 2021. Again, it was only on 21 February 2022 that she was notified of the requirement to move. As with the first and second plaintiff, her proceedings were out of time to the extent that relief by way of judicial review was sought. Proceeding on the basis that notification only occurred on 29 November 2021, the proceeding was commenced within time with respect to the human rights claim.

26. I consider it appropriate to make orders extending the time in which each plaintiff may commence proceedings (whether by judicial review or based on human rights considerations) because: (a) The delay in commencing proceedings was relatively short in respect of the human rights claim, and not inordinate insofar as the application involved judicial review. (b) The plaintiffs were notified of the initial decisions in a haphazard way, and there was inconsistent messaging when such notifications were made, with the consequences for the plaintiffs (mandatory transfer) not being made clear until months later. (c) The nature of the decision under challenge may be relevant to the court’s discretion in determining whether it is appropriate to extend the time for a plaintiff to seek redress through the courts. Here, that was a matter of significance because the nature of the decision itself made it difficult to understand and access the potential legal remedies available. Specifically, the initial decisions were of a policy nature. Understandably, no reasons were formally provided. Any avenues for review, such as the process for exemption subsequently entertained with respect to the first and second plaintiffs, were not apparently offered at that point. Letters addressed to the plaintiffs on 21 February 2022 notifying them that they were required to move out of their houses purported to include a fact sheet with “commonly asked questions”, but it is unclear what the contents of that document was, as it was not in evidence. There was a factsheet attached to the letter to the third plaintiff in July 2022, but it was unclear whether that was the same document or one that had been updated. Assuming it was, it referred solely to the process for applying for exemption and stated that there was no appeal from a decision by the panel. In any event, the process for pursing any review (even if limited only to judicial review) was not readily apparent with or without the provision of a factsheet. It should be emphasised that there is no criticism of either the fact that a policy was implemented or that the avenues for review were expressly limited. It is just that the nature of the decision made had the consequence that challenging it was not as straightforward as perhaps in other cases. The plaintiffs (with the assistance of lawyers) needed to first determine the process to be followed and whether judicial review was their only course of action and then gather information as to what was actually considered by the decision-maker in making the decision. Any delay in pursuing available legal rights through the courts must be viewed in that context. (d) In the case of the judicial review proceedings, the Commissioner’s cooperative attitude – being a concession (discussed next) and consent to setting aside the initial decisions – were sufficient reason alone to constitute the ‘special circumstances’ required for an order extending time. (e) In the case of actions brought under the Human Rights Act, the relief sought partially overlapped with that sought by way of judicial review. (f) There was no prejudice to the defendants arising from any delay in the commencement of proceedings. (g) The proceedings had arguable merit, raised questions of substance and, while not strictly public interest, involved issues of public importance. (h) The parties dealt with the totality of the issues at the hearing, such that the question of whether an extension should be granted largely rose or fell with the ultimate success or failure of each plaintiff in the proceeding.

Judicial review application – the concession as to jurisdictional error

27. The Commissioner conceded there was a denial of procedural fairness in respect of the initial decisions to include each of the dwellings in the Program, which had the effect of requiring each plaintiff to transfer to a new property.

28. The Commissioner consented to an order setting aside the initial decision in respect of each plaintiff. Accordingly, the first and second plaintiffs have succeeded on their applications for judicial review and orders setting aside the initial decision in respect of each property will be made.

29. The third plaintiff had the benefit of the Commissioner’s concession despite not specifically seeking an order for such relief in her Amended Originating Application. That appears to have been an oversight, as the third plaintiff expressly sought judicial review (naming as the foundation for the proceeding pt 3.10 of the Rules, which deals with judicial review, as well as the Human Rights Act) and one of the grounds raised was that the initial decision notified on 29 November 2021 was affected by jurisdictional error. Further, the plaintiff sought leave to file and rely upon a further amended originating application, which sought to remedy the oversight by including an order similar to that claimed by the first and second plaintiffs.

30. For reasons that are explained below, I rejected the further amended originating application as it was substantively directed to expanding the human rights claim. Insofar as the relief in the judicial review proceeding was concerned, the third plaintiff’s oversight can be accommodated through the existing order sought, namely “any other orders that the Court considered appropriate”, as well as r 1600 of the Rules, which permits the court to make any order that the nature of the case requires, even if there is no claim for relief extending to that order in the originating process. As the Commissioner was plainly on notice of the third plaintiff’s case in this respect and did not oppose the same order being made in respect of the third plaintiff, the appropriate course is to set aside the initial decision in respect of the third plaintiff by consent.

Remaining issues on the judicial review application – relief and costs

31. The plaintiffs sought declaratory relief in addition to an order setting aside the initial decisions. In the case of the first and second plaintiffs, they argued that the declaratory relief should extend to the subsequent decisions of the Commissioner’s delegates refusing an exemption.

32. The Commissioner and individual defendants opposed those orders. In respect of the initial decisions, declaratory relief was opposed because the order giving effect to the Commissioner’s concession that those initial decisions were a nullity was said to be sufficient. In respect of the further decisions refusing an exemption from the Program, it was submitted that those decisions would automatically fall away as a result of the order setting aside the initial decision to include the properties in the Program. It was therefore unnecessary to make declarations in respect of those decisions.

Declaratory relief is appropriate

33. I have decided that it is appropriate to grant declaratory relief here in respect of the initial decisions and subsequent refusal of exemption decisions. The basis for reaching that conclusion follows.

34. First, the discretion to make a declaration is wide and to be exercised judicially: University of New South Wales v Moorhouse [1975] HCA 26; 133 CLR 1 at 9 per Gibbs J; and Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581- 582. Following Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 (Forster) at 437-438, declaratory relief may be refused where: (a) The applicant does not have a real interest in the issue; (b) The issue is not real but hypothetical or theoretical (see also Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448); or (c) There is no proper contradictor.

35. There was no dispute about the first and third of those matters: (a) As to the first, it was uncontroversial that the rights of the plaintiffs to remain in their properties were each directly affected and that the plaintiffs were therefore interested parties. (b) As to the third, the Commissioner and other defendants were each proper contradictors.

36. As to the second of those matters, in Martin v Taylor [2000] FCA 1002, Einfeld and Kenny JJ (with whom Miles J agreed) explained that there need not be a cause of action, but the declaration must resolve a real issue, citing Forster, and going on to state at [27]: … A case is not "real", for this purpose, when the issue to be determined is divorced from the facts to which it relates. A general declaration "in air", unrelated to specific facts, will not necessarily resolve the dispute between the parties. If the facts turn out to be different from the assumed factual basis of the declaration, then the declaration will resolve nothing: cf nd Zamir and Woolf, The Declaratory Judgment (2 ed, 1993) p 132.

37. There was a controversy giving rise to the proceeding, in that it was only by the pursuit of these proceedings that the Commissioner’s concession and consent to setting aside the initial decisions was obtained on 16 June 2023. The concession (one month before trial) is properly to be viewed as an admission. In those circumstances, the court may make the order to which the party is entitled: r 493 of the Rules. The Commissioner cannot avoid the relief that would ordinarily follow as a consequence.

38. Ultimately, the court must be satisfied that the making of the declarations sought is appropriate, even where parties have jointly proposed the relief. Because a declaration is a judicial act, it ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412. Whether it will be appropriate to grant such relief depends upon the requirements of justice in the particular case: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470.

39. Here, the denial of procedural fairness was not just attributable to the concession, it was established on the evidence. The applicable principle is that when a statute confers upon a public official power “to destroy, defeat or prejudice a person's rights, interests or legitimate expectations”, the rules of procedural fairness regulate the exercise of that power unless excluded “by plain words of necessary intendment”: Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598, cited more recently in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [74].

40. It was not contended that procedural fairness was excluded in the present statutory regime under consideration. Whatever the content of procedural fairness required by the Housing Act and 2013 Instrument, the plaintiffs were not given any opportunity to be heard at all, and the initial decision was final, in that it was expressly stated to be a non-reviewable decision under the 2013 Instrument. Where affording procedural fairness is a condition of the grant of a statutory power, and governs the exercise of the power, a failure to comply with the rules will render any decision made, in purported exercise of the power, invalid: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [13]. That amounts to jurisdictional error (the decisions in question being non-reviewable and therefore arguably requiring that kind of error).

41. Subject to consideration of one matter, an entitlement to a declaration of invalidity naturally follows.

42. The one matter is that there must also be some utility in granting the declaration: Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; 131 CLR 286 at 307. The defendants’ position was that the grant of declaratory relief here would be inutile in circumstances where the Commissioner had consented to setting aside the initial decisions challenged by the plaintiffs on the basis that they were “a nullity”. The defendants submitted: (a) The plaintiffs remained and continue to remain in the subject residences and the conduct about which they complain is not continuing. (b) The Commissioner has already agreed to the making of orders that the decisions purportedly made should be quashed or set aside. (c) Such orders will provide the plaintiffs with an adequate remedy that is proportionate to any breach, having regard to other aspects of the public interest, such as the appropriate use of court resources.

43. On this issue of utility, the defendants referred to Haigh v Ryan [2020] VSC 102 (Haigh) and Burgess v Director of Housing (No 2) [2015] VSC 70 (Burgess). Each of those cases provide clear examples of circumstances where it may be appropriate to withhold declaratory relief for lack of utility.

44. In Haigh, the context involved management of communications in a prison. The plaintiff challenged a decision to refuse to send a letter, alleging breaches of his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter) and relying on administrative review grounds. The defendant in that case conceded that the decision was affected by jurisdictional error and made the opposite decision. Further, the plaintiff had circumvented the decision by ensuring that his letter was sent to the intended recipient via different means. The plaintiff nevertheless pressed his claim for declaratory relief. The court there found (at [19]-[22]) that because the decision in question did not have any continuing legal existence, any declaration to the effect that the decision was invalid would be purely academic, and that courts do not make declarations about academic questions.

45. In Burgess, the context involved a failure to afford procedural fairness in respect of a notice to vacate premises. There had subsequently been a possession order obtained in the Victorian Civil and Administrative Tribunal (VCAT) which remained lawful, notwithstanding that the notice was found to be unlawful (the point being that this was a different legislative framework, with different legal consequences from the decisions in question here).

46. Further, the court had separately indicated that it was appropriate to make a declaration that a decision to apply for a warrant of possession was invalid. Among the reasons given by the Victorian Supreme Court for refusing further declaratory relief were that in those circumstances, declarations about an earlier notice to vacate lacked utility, because the notice had no remaining legal effect, there was no foreseeable consequence flowing from making the declaration and there was a potential to create confusion due to the VCAT possession order being obtained as a consequence of the notice decision.

47. This case is different from each of those examples in a number of respects: (a) The statutory context for these decisions is different, including the nature of the decision made being non-reviewable. (b) The stage in the decision-making process is different. Unlike the circumstances in Haigh and Burgess, there remains the possibility of decisions involving the same subject matter. (c) The circumstances of the plaintiffs involved are also different. In Haigh, the letter in question was subsequently permitted to be sent. In Burgess, the plaintiff was required to vacate the property pursuant to a lawful order made by the VCAT. That is, the earlier invalid notice had been overtaken, so any declaration about it would have served no purpose and possibly created confusion. Here, there were no subsequent orders for possession. As at the date of hearing:

1․ It was not the case that the Commissioner had made the opposite decision, nor that any undertaking had been given that there would be no further decision made requiring the plaintiffs to transfer from their existing properties;

2․ The sequence of events had not overtaken any previous decision vitiated by a failure to afford natural justice; and

3․ The plaintiffs remained in the subject properties. (d) The plaintiffs have put forward sufficient evidence at hearing to prove the entitlement to the declaration, unlike the position in Haigh.

48. Acknowledging that a decision affected by jurisdictional error is no decision at all (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51]-[53]), that is not to be taken as authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. The legal and factual consequences of the decision will depend upon the particular statutory context: Jadwan Pty Ltd v Secretary Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 at [42]; GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; 72 NSWLR 647 at [90]; Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264 at [56]; and Lewski v ASIC [2016] FCAFC 96; 246 FCR 200 at [249].

49. It is important to remember that the decision-makers implementing the policy of the Commissioner here and in the future are administrators. They are not necessarily lawyers, nor will they likely have the time to familiarise themselves with the intricacies of this case (including via these reasons for judgment). There is utility in providing clarity for those involved in the decision-making processes with regard to these properties. For example, without a declaration, it might be difficult for a non-lawyer to work out the status of the decision made by a review Panel, refusing an exemption from a decision that was itself invalid but operationally effective until a subsequent decision made by the Commissioner to set it aside following the commencement of this court proceeding. The declaration that it has no legal effect removes the need to grapple with those concepts. The law – as articulated through the courts and the orders it makes – should make people’s lives easier, not harder. Invalidity has been established not only by the concession but on the evidence put forward for the purpose of judicial determination and in those circumstances, declaratory relief should follow almost as of right.

50. The declarations of invalidity will provide clarity in a number of ways: (a) In respect of the first plaintiff, the precise decision was unable to be identified by the Commissioner. A declaration will assist with capturing the substance of the decision, leaving no room for doubt as to what was held to be invalid. (b) There were subsequent decisions made, arising from the initial decisions. Their legal status was a bit murky, as they appeared to be a result of a policy providing a back-door means for review of a decision that was statutorily non-reviewable. However, it is unnecessary to deal with questions of power further because, contrary to what occurred in Burgess, those decisions are also infected by the original failure to afford procedural fairness, no action has been taken pursuant to them, and as accepted by the defendants, they must also fall away. A declaration to that effect will make the status of those decisions clear. (c) There were also numerous arguments raised by the plaintiffs as giving rise to an entitlement to declaratory relief. A declaration will make it clear why each decision was set aside. In turn, that assists both the parties and future decision-makers in any processes subsequently followed in respect of these properties.

51. The last of those matters deserves a little more explanation because of a submission that was made by the defendants that it is not appropriate for a declaration to be granted merely to provide guidance for future cases. The context for the submission was part of a response to more wide-reaching injunctive relief sought by the plaintiffs, seeking to prevent the Commissioner from taking any steps to remove each plaintiff from their respective property on human rights grounds. I have dealt with it here for efficiency in these reasons. I accept the defendants’ submission, but the declarations of invalidity that I have in contemplation here do not offend that principle.

52. The two cases relied on by the defendants assist in explaining the principle. The first was Minister for Immigration & Multicultural Affairs v Ozmanian [1996] FCA 1017; 71 FCR 1 (Ozmanian), which was an appeal from a declaration that the Minister had breached the rules of natural justice. While that may seem unexceptional, the circumstances of the case were that the declaration was not productive of any effect in the present proceeding. It was made on the basis that there was a possibility that a valid decision might be made at some time in the future, and that declaratory relief “might prove to be of some significance to those proceedings and productive of some legal consequences”. Kiefel J (with whom Sackville J agreed) considered that granting a declaration because it might provide general assistance in the future was inappropriate. Her Honour stated that the enquiry was not whether declaratory relief will be productive of any legal consequence (generally), explaining at 32-33: If the utility of a declaration is to be found in its operation within other proceedings between the parties, the Court must consider what use it will serve and what it might resolve.

53. The second was Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513, which was a very different case about a visa cancellation decision wherein a submission was made about consideration of future consequences. It was stated at [19] that future exercises of discretion and statutory power are to be resolved when they arise.

54. Such statements of the law may be accepted as a matter of principle, but the circumstances that led the courts in those cases to caution against making declarations for the purpose of resolving future controversies, or providing some unspecified assistance in the future, or about considering consequences for a party at a future point in time, do not exist here.

55. It need hardly be said that whether it is appropriate to grant a declaration of invalidity in respect of a decision that either has been or will be set aside depends on the circumstances, with variables including the statutory regime, the nature of the decision being made, the parties in dispute, the availability of other relief and so forth.

56. Here, the declarations of invalidity found the very relief to which the Commissioner has consented, but they go beyond that utility. Articulating what was resolved by the present proceeding serves the fundamental purpose of making it clear to the world at large why the orders setting aside the decisions were made.

57. The corollary purpose of such relief is that it recognises what was not decided here. The decisions were challenged on several bases in this proceeding, including failure to take account of relevant considerations and human rights contraventions that are discussed below. Unlike the case in Ozmanian, declaring that decisions were invalid for failing to provide procedural fairness is not directed to resolving any future decision that might be made under the Program. Rather, it is directed to making it clear that some matters raised in this proceeding may well be live issues again if the Commissioner pursues the sale and redevelopment objectives with regard to these properties.

58. A specific declaration of invalidity and the basis for it will avoid any confusion or suggestion that the court considered or impliedly accepted or rejected arguments made by the plaintiffs; for example, arguments about relevant considerations in respect of the transfer decision to be made for each plaintiff’s tenancy. For these reasons, on judicial review, declaratory relief in respect of each of the decisions challenged will be granted.

Costs should follow the event

59. In relation to costs, the defendants agreed to pay the plaintiffs’ costs of the proceeding up to 6 June 2023. The plaintiffs have been successful in obtaining the further relief sought on judicial review. In the exercise of the court’s discretion, an order giving effect to the usual basis applying to the issue of costs (namely that costs follow the event) is appropriate.

The human rights claims: issues for determination

60. Turning next to the claim based on conduct incompatible with the Human Rights Act. That remained entirely disputed by the defendants. Section 40C(1) and (2) of the Human Rights Act creates the right to bring a proceeding in the Supreme Court: 40C Legal proceedings in relation to public authority actions (1) This section applies if a person— (a) claims that a public authority has acted in contravention of section 40B; and (b) alleges that the person is or would be a victim of the contravention. (2) The person may— (a) start a proceeding in the Supreme Court against the public authority; or (b) rely on the person's rights under this Act in other legal proceedings.

61. The plaintiffs each contended that the decisions of the defendants contravened section 40B of the Human Rights Act. The operative part of the section is s 40B(1): 40B Public authorities must act consistently with human rights (1) It is unlawful for a public authority— (a) to act in a way that is incompatible with a human right; or (b) in making a decision, to fail to give proper consideration to a relevant human right.

62. Section 40B(2) provides for circumstances where the section does not apply. They are immaterial to the present dispute.

63. The plaintiffs relied on both limbs of s 40B(1). These were discussed in Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396 (Williams) at [16] (and the cases there-cited). The first limb is substantive. The second is procedural.

64. In respect of the procedural limb, what constitutes ‘proper’ consideration was discussed in Williams at [161]-[187]. I adhere to those reasons, and they will not be repeated in full here. It simply means consideration that is ‘proper’ for the decision being made. That qualification recognises that there are a multitude of decisions being made by public authorities in the Territory every day, with varying degrees of impact on human rights. What may be proper in one statutory decision-making context may not be proper in another. The assessment is fact dependant and there is no test for assessing whether ‘proper’ consideration was given. The court simply examines the consideration that was given (if any) to the relevant human rights said to have been engaged in any particular case and determines whether it was proper. That involves an assessment of whether the consideration given to relevant human rights was one of substance, rather than tokenistic, with such an assessment informed by the context of the decision involved.

65. The human rights identified as being relevant in the amended originating applications were as follows: (a) Freedom from degrading treatment: s 10(1)(b); (b) Freedom from unlawful or arbitrary interference with privacy, family and home: s 12(a); and (c) Freedom of movement and a person’s freedom to choose their residence in the Territory: s 13.

66. In addition, the third plaintiff contended that her right to maintain her culture and kinship ties under s 27 of the Human Rights Act was contravened.

67. The overarching issues for determination for each plaintiff’s claim are thus whether either of those two limbs of s 40B(1) have been established in respect of any or all of the human rights identified.

A preliminary ruling on pleadings – reasons for refusing leave to the plaintiffs to further amend their applications

68. By applications in proceeding dated 11 July 2023 (two days before the hearing), each plaintiff sought leave pursuant to r 504 of the Rules to file a further amended originating application for judicial review on grounds of “the interests of justice and for the proper conduct of the proceedings”.

69. The substance of the amendments sought was as follows: (a) Separate the declaratory relief so that it was expressly tied to each of the limbs of s 40B of the Human Rights Act, namely – (i) The defendants acted incompatibly with each plaintiff’s human rights in contravention of s 40B(1)(a) of the Human Rights Act; (ii) The defendants failed to give proper consideration to each plaintiff’s human rights in contravention of s 40B(1)(b) of the Human Rights Act; (b) Further declare that a servant or agent of the Commissioner made a representation to each plaintiff in 1995, 1981 and 1993 respectively that they could have occupation of their respective homes for life; (c) Assert a breach of the plaintiffs’ human rights, cumulatively adding contraventions based on ss 8(2), 8(3), 11(1), 11(2) and 14(b) of the Human Rights Act; and (d) Seek mandatory injunctive relief pursuant to s 40C(4) of the Human Rights Act, that before the Commissioner made any removal decision under the Program or the Residential Tenancies Act 1997 (ACT) (Residential Tenancies Act), that the plaintiffs be given the opportunity to provide submissions and that the Commissioner must give proper consideration to such submissions.

70. The Commissioner and other defendants opposed the applications to further amend and leave to further amend was refused at the commencement of the hearing. The defendants’ position was as follows: (a) There was insufficient time for the defendants to obtain the necessary evidence to address the additional alleged failure to give proper consideration to the further human rights sought to be raised and whether a representation was made to the plaintiffs by an alleged employee in the Commissioner’s office over 30 years ago. (b) Ambiguity in relation to the first plaintiff’s claim for breach of s 8 of the Human Rights Act, because the allegations of discrimination based on the individual’s circumstances were said to be incompatible with her case of a failure to consider her circumstances. (c) Further ambiguity in relation to reliance on any representation that the plaintiffs would have a right to occupation for life and how it founded any cause of action or supported any contravention of human rights claimed. For example, the proposed amendment did not disclose whether this was an additional cause of action based on negligent misstatement. To the extent that the third plaintiff was seeking to pursue any separate cause of action, the elements were not pleaded sufficiently for the Commissioner to meet the case, and there may be an applicable limitation period that would have to be overcome. Depending on the cause of action, such a claim would also likely require that damages be proven.

71. The reasons for refusing leave are as follows.

Nature of the amendments

72. First, consideration was given to the nature of the amendments. Insofar as the declaratory relief specifying each limb of s 40B of the Human Rights Act was concerned, that was relatively uncontroversial, but it was already covered by the existing relief set out in the amended originating process for each plaintiff. The grounds of each amended application made it clear that the declaration of a breach of the Human Rights Act was based on the substance of the relevant decisions and the process by which each decision was made.

73. As to the remainder of the amendments introducing additional human rights and an allegation of a representation said to have been made by an officer of the Commissioner many years ago, assuming that the amendments had arguable merit, they expanded the proceedings in a significant way.

74. With regard to the representation said to have been made to each plaintiff, it was not clear how this was relevant to each plaintiff’s case. For example, it was not clear whether the representation was limited to a fact establishing that each plaintiff viewed the property as their long-term home for many years, or whether the plaintiffs relied on that representation for a separate legal consequence. It was uncertain whether the plaintiffs were asserting a misrepresentation case founding a separate cause of action. The nature of that proposed amendment was too ambiguous in the form that was proffered.

75. Otherwise, the reliance on additional human rights gave rise to separate statutory causes of action which would have required some additional court time, although I took into account that because the evidence overlapped with other claims already before the court, the proceedings would not have been lengthened unduly, subject to the Commissioner being given the opportunity to respond (considered separately).

Delay in seeking to amend

76. Second, the amendments were sought at a very late stage of the proceeding, two days before final hearing in circumstances where these proceedings had been commenced some nine months earlier in October 2022. Further, the application to amend was made years after the decisions complained of occurred. The separate statutory causes of action were well out of time: s 40C(3) of the Human Rights Act. Leave was required to commence those actions. Given my reasons dealing with the question of leave above, that requirement alone was not insurmountable, but those matters were nevertheless relevant to the overall exercise of the discretion to extend time.

Prejudice to defendants would have necessitated an adjournment

77. Third, the Commissioner was not in a position to answer the amendments on the evidence that was before the court. One of the amendments related to a representation made years earlier, which would have required investigation and further evidence. Another amendment raised the human right to freedom from discrimination. That would have required the Commissioner to investigate and potentially lead evidence as to what occurred in relation to decisions made in respect of other properties, in order to address whether these plaintiffs were treated in a manner less favourable or otherwise without equality. An adjournment of the proceeding would have been required to afford the Commissioner a fair opportunity to address the late-breaking amendments.

78. The court must apply the Rules in a way that best promotes the just resolution of the dispute not only according to law, but in as quickly, inexpensively and efficient a way as possible: s 5A of the Court Procedures Act 2004 (ACT). This dispute had been substantively resolved by the Commissioner agreeing to set aside the decisions that gave rise to the entire proceeding. The relief in dispute was confined to whether declaratory relief should be granted in addition to the relief in the nature of certiorari. The primary human rights claims were already before the court for hearing. This was not a case where the plaintiffs had not articulated any human rights claim for determination at all. It appeared to me that the plaintiffs were pursuing a scattergun approach to the various human rights available under the Human Rights Act, seeking to run any argument available in the hope that one would be successful, rather than focussing on their stronger claims.

79. To adjourn the proceeding to enable the plaintiffs to take that approach, where relying on additional rights could only have sounded in further declarations to the same effect as the relief already sought, would have been contrary to the timely and efficient disposal not only of these proceedings, but of the court’s overall caseload.

Unsatisfactory explanation for delay

80. Fourth, the explanation for the delay appeared to be pure opportunism arising out of submissions made by the Intervenor. Rather than confining her intervening role to making submissions on the case that was being run by the plaintiffs, the Intervenor saw fit to make broader submissions, arguing for other human rights on which a claim might have been based, such as the right to freedom from discrimination. Putting issues about the appropriateness of that course to one side, having read those arguments, the plaintiffs then sought to adopt them. However, they could not do so without first bringing their pleadings into alignment with the arguments they wished to adopt. That did not amount to a satisfactory explanation, in that the explanation was insufficient to cause the court to grant the application in circumstances where the consequences of the amendments would have been an adjournment of the proceeding for a significant period of time.

Conclusion on the application to further amend

81. The combination of those matters led me to the conclusion that the application to further amend the originating applications should be refused.

General principles in interpreting human rights and the Human Rights Act

82. Before dealing with each of the human rights relied upon by the plaintiffs, it is appropriate to briefly set out the court’s approach to the interpretation of the Human Rights Act and any statute limiting the content of the rights there-prescribed. The following considerations are borne in mind: (a) A broader range of jurisprudence informs the words of the Human Rights Act because the rights prescribed in that statute are drawn primarily from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR): Explanatory Statement to the Human Rights Bill 2003 (ACT) at 3. See also Williams at [148]-[149] and Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 (Islam (2021)) at [77]-[79]. (b) The task of interpreting and applying the Human Rights Act is assisted by reference to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision, with due caution exercised for the particular statutory and constitutional framework in the jurisdiction and any variations in the words used across the sections under consideration: s 31 of the Human Right Act; and Momcilovic v R [2011] HCA 34; 245 CLR 1 (Momcilovic) at [18] per French CJ; at [146] per Gummow J. (c) Each right is to be construed in “the broadest possible way”: see Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 (Certain Children) at [143] and the authorities there-cited. (d) So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights: s 30 of the Human Rights Act. (e) The approach is no different to statutory interpretation: Momcilovic at [565].

83. Considering whether a statutory entitlement, being the human right identified, has been denied, either because of conduct which was incompatible with the right (s 40B(1)(a)) or because of a decision that was made without taking the person’s human rights into account (s 40B(1)(b)), is a question of fact and degree to be assessed in all the circumstances: Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 per Mossop M (as his Honour then was) at [87].

84. If the court finds that the conduct complained of is, or was, incompatible with a plaintiff’s human right, the task turns to considering the appropriate remedy under s 40C(6) of the Human Rights Act (as it is now), which permits the court to grant “the relief it considers appropriate except damages.”

85. For completeness, at the time this proceeding was commenced the relevant power to grant relief was s 40C(4). It was in the same terms. The current numbering was brought about on 11 June 2024, as a result of the commencement of amendments made by the Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) (HR Complaints Amendment Act). In this case, nothing turns on the amendments.

Statutory provision for reasonable limits to be imposed on human rights

86. Some of the arguments traversed by the parties dealt with the process by which human rights may be limited pursuant to s 28 of the Human Rights Act: 28 Human rights may be limited (1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society. (2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following: (a) the nature of the right affected; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

87. I have discussed the applicable principles and the general approach to be taken when addressing the content of a human right and laws which limit those rights in Williams at [233]-[238], relying on Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 (Islam (2018)) at [41]-[44]. They are as follows: (a) Section 28 acknowledges that the human rights under the Human Rights Act are not absolute or always completely consistent with each other. It facilitates a conclusion that where a law limits a human right under the Human Rights Act, the statute itself permits the right to be reduced, subject to the limitation being justified or reasonable. In that way, the right and the statutory provision are rendered compatible following adjustment: Momcilovic at [572] per Crennan and Kiefel JJ; and at [684] per Bell J. (b) If the limitation is not reasonable, then the conduct in question will be incompatible with the relevant human right under the Human Rights Act. Various considerations for reasonableness under s 28 of the Act invoke what is known as the proportionality test: Momcilovic at [22] and [34] per French CJ; at [432] per Heydon J; and at [555]-[557] per Crennan and Kiefel JJ. It should be noted that Momcilovic was dealing with s 7(2) of the Victorian Charter. (c) Three components provide a framework for assessing proportionality (Momcilovic at [553] per Crennan and Kiefel JJ):

1․ The nature (and inferentially the importance) of the right affected;

2․ The importance and purpose of the limitation; and

3․ The extent to which the limitation operates on the right. (d) That framework is reflected in the considerations set out in s 28(2) of the Human Rights Act. The court objectively assesses the relationship between the purpose of the limit and the nature and extent of the limit on the right: Certain Children at [206]-[208]; and Rich v Howe [2017] VSC 483 at [161]. (e) The assessment required under s 28 is concerned with whether the law imposing the limit (including any policies lawfully made under statute) is proportionate or justified. It is not directed to assessing the proportionality of a discretionary decision carried out in accordance with a limit. It is important not to conflate the two. (f) The onus of establishing that a human right has been limited lawfully (in accordance with s 28) is on the person alleging the limitation: Thompson v Minogue [2021] VSCA 358; 67 VR 301 (Thompson) at [47].

88. With that understanding of the statute and how it operates, it remains to address the plaintiffs’ human rights claims.

The defendants failed to properly consider the plaintiffs’ right to protection from unlawful or arbitrary interference with their homes

89. As emphasised at the outset of these reasons, the protection from unlawful or arbitrary interference with one’s home (s 12(a) of the Human Rights Act) is the human right that I consider to be at the centre of this dispute. It was engaged and it was not given proper consideration in any of the decision-making processes that occurred. That is a finding that the process of decision-making was flawed.

90. The outcome may also have been flawed as a matter of substance in respect of these plaintiffs, but it is unnecessary to deal with that in any detail as the plaintiffs have already succeeded in two different ways (namely judicial review and under s 40B(1)(b) of the Human Rights Act). Those findings are sufficient to dispose of the matter.

91. As to the reasons for the finding that the defendants failed to give proper consideration to the plaintiffs’ right under s 12(a) of the Human Rights Act, I adopted the following approach: (a) Understanding the nature of the right and its scope; (b) Determining whether the right was engaged here; (c) If it was, reviewing the decision-making process to see whether proper consideration was given to the right.

The nature of the right to freedom from unlawful or arbitrary interference with home

92. It is necessary to understand what constitutes an ‘interference with home’. The question is to be approached in a simple and untechnical manner: Harrow London Borough Council v Qazi [2004] 1 AC 983 (Harrow) at [12].

93. What constitutes a home is a question of fact having regard to the circumstances of the case. Given this was not in issue here, it suffices to state that the concept of ‘home’ is autonomous and does not depend on legal niceties such as whether the occupation was lawful: Harrow at [10] and [61]. In the public housing context, rented premises are the tenant’s home for the purposes of s 12(a) of the Human Rights Act: Harrow at [11] and [68]; and McCann v United Kingdom [2008] III Eur Court HR 135 at [46].

94. What constitutes interference is similarly untechnical. Any attempt to remove a person from their home (whether by compulsory transfer or eviction) without the consent of the individual affected is an interference with their home: see PJB v Melbourne Health [2011] VSC 327; 39 VR 373 (PJB) at [60], quoting Director of Housing v Sudi [2010] VCAT 328 at [34]; and Orlic v Croatia (European Court of Human Rights, First Section, Application No 48833/07, 21 June 2011) at [56]-[59] and the cases there-cited.

95. An unlawful interference is one which infringes an applicable law, while an arbitrary interference extends beyond conduct which is unlawful. It involves conduct which is capricious, or has resulted from conduct that is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought: Williams at [225]-[226], citing Thompson at [55].

The right was engaged here

96. Evicting or seeking to evict someone living in public housing is interfering with the human rights relating to their home: Harrow at [23]; and Kay v Lambeth London Borough Council [2006] 2 AC 465 at [28]. The defendants argued that eviction would only have occurred through the exercise of power under the Residential Tenancies Act and that no such step had been taken in respect of any plaintiff.

97. However, compulsory transfer also engages the right because it requires the removal of the tenant from their home without their consent. The initial decision to include a property in which a person was living in a program which took those residences out of the pool of public housing for sale or redevelopment had a direct impact on the people living in the properties, in that they were going to have to move. At the point that the initial decision was made, the attitude of the plaintiffs to that outcome was unknown. Contrary to the defendants’ submissions, the right was engaged in the circumstances of these cases.

98. Further, in respect of the subsequent decisions refusing an exemption from the Program, the attitude of the first and second plaintiffs was known, in that they did not consent to removal or transfer under any circumstances. Again, the right was engaged and the finding at that point in the decision-making process applies with greater force.

99. The defendants also argued that the right was not engaged because of the operation of s 28 of the Human Rights Act and the ability to place reasonable limits on the rights prescribed in that Act. That section affects the content of the right and is generally relevant to whether the conduct in question was incompatible as a matter of substance, but it can provide context for the assessment of whether proper consideration was given to a right in the making of a decision (as discussed below in relation to the freedom in choice of residence).

100. The defendants’ submission in the way that it was put for this right conflated: (a) A public authority making a decision that interferes with rights in a way that is demonstrably justifiable, with (b) A decision that gives proper consideration to human rights.

101. As submitted by the Intervenor, a decision may not be incompatible as a matter of substance, but the public authority may nevertheless have acted unlawfully, if the relevant rights were not properly considered as part of the decision-making process: Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 at [226]. As explained in that authority, the reason why an otherwise justifiable decision is unlawful is because if rights had been properly considered, a different decision may have been made. That is why it is not enough to simply prove that the right was subject to a reasonable limit.

102. In the circumstances here, the fact that reasonable limits may have been placed on the right to reside in a certain property (through lawful legislation and policies consistent with the legislation) may have the consequence that the interference was lawful, but it does not mean that the right was not engaged at all.

No consideration was given to the right in the decisions concerning the plaintiffs

103. There was scant evidence of what was considered in respect of the initial decisions. The correspondence sent to the plaintiffs does not reveal any substantive consideration of any identifiable human right. The “Required Relocation Operational Policy” contained, among the actions that were intended to be undertaken: • Consideration of the potential impact on the household in accordance with the Human Rights Act. • Following of processes that are consistent with Natural Justice principles and procedural fairness. • Engaging with clients to understand their needs, requirements, and ability to relocate.

104. At the initial decision-making stage, given the complete lack of consultation conceded by the defendants, there does not appear to have been any consideration of the plaintiffs’ individual human rights to freedom from unlawful or arbitrary interference with their homes. The policy suggests that such consideration of the potential impact in that regard was to occur at a later stage in the process of required relocation.

105. The difficulty, though, is that the consideration of relevant human rights anticipated by the policy did not in fact occur. There was evidence of what the decision-makers considered at the point where the first and second plaintiffs sought exemptions. In respect of the first plaintiff, it read as follows: Dear [son of first plaintiff], Please see below decision points: 1. The redevelopment yield for this property will be 3x 2-bedroom properties, 2. There is a low percentage of stock in that suburb, 3. The plans for DA have been lodged and are awaiting approvals. Thanks for your time, [decision-maker]

106. There was manifestly no consideration of the first plaintiff’s right to freedom from unlawful or arbitrary interference with her home. There was no consideration of the plaintiff’s particular circumstances at all.

107. The same reasoning applies in respect of the second plaintiff. In respect of the subsequent decision-making process, there was audio-visual evidence of the purported hearing by the Panel and the considerations that were taken into account. Much could be said about what occurred during that hearing. It suffices to find that there was no proper consideration of the relevant human right that was engaged.

108. The third plaintiff did not seek an exemption; she simply commenced these proceedings in respect of the initial decision.

109. For those reasons, the plaintiffs succeed in establishing a failure to give proper consideration to a relevant human right. The question of relief is dealt with below.

The right to freedom in choice of residence in the Territory was engaged and proper consideration was given to it

110. The right to freedom of movement is set out in s 13 of the Human Rights Act as follows: Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose their residence in the ACT. The content and scope of the right

111. As submitted by the defendants, this right is based on Article 12 of the ICCPR. Article 12 is concerned with the differential treatment of nationals and non-nationals of a State party to the ICCPR in relation to restriction of movement within a State, as well as private interference with the right and protection against internal displacement.

112. However, as submitted by the Intervenor, and applying the general principles discussed above, the scope of the right extends more broadly than those circumstances. Applying a non-technical or pragmatic approach, it is engaged where someone else chooses where a person will reside. That does not mean that the right is contravened in every case where a residence is imposed on someone. The right has been found to be engaged in a variety of circumstances. Examples include: (a) Guardianship arrangements which require a person to reside at a specified locations: Re Beth [2013] VSC 189; 42 VR 124; (b) Where a person is subject to a treatment order which requires them to reside in a specified location: Anturnovic v Dawson [2010] VSC 377; 30 VR 355 at [76] and [176]; (c) Proceedings to appoint an administrator of an estate of a person in mental health detention, where that would have involved the transfer of exclusive management and control (including the power of sale) of the person’s home: PJB at [47], [51]-[52] and [286]. (d) Supervision orders post-sentence, which concern where the subject of the orders may reside: Attorney-General (Qld) v Carter [2020] QSC 217 at [59]; and Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359 at [206].

The engagement of the right

113. Here, the plaintiffs’ freedom to choose their respective residences in the ACT may have been subject to reasonable limits (discussed below), but the decisions under challenge unquestionably involved a decision being made by a public authority about where each plaintiff could, or in this case, could not, live. The right was engaged.

Proper consideration was given to the right in the decisions concerning the plaintiffs

114. The evidence was sufficient to demonstrate that proper consideration was given to each plaintiff’s right to choose their residence in the ACT. The starting point is cl 21 of the 2013 Instrument, which provided that the Commissioner may decide the size, type and location of the dwelling to be provided to an applicant by way of rental housing assistance, but required that the Commissioner take into account a number of matters, including: (a) The availability of different sizes and types of dwellings in various locations; (b) The reasonable accommodation needs of the applicant; (c) The preferences expressed by the applicant; and (d) Whether the applicant has been identified as a special needs applicant with an entitlement to a special needs dwelling.

115. The requirements of cl 28(2) of the 2013 Instrument (set out at [9] above) did not expressly require consideration of the plaintiff’s choice, but the burden of that section was only a requirement to transfer “to another public housing dwelling”. No party made the submission that cl 28(2) of the 2013 Instrument was incompatible with the Human Rights Act per se.

116. The policy that then implemented such a requirement to transfer expressly incorporated engagement with the tenant about relocation, understanding their needs and providing more than one opportunity for the tenant to reject what was offered.

117. That is the context in which the assessment of a ‘proper’ consideration occurs for the purported decisions under challenge here. For the initial decisions, given the published strategy in evidence, it was clear that the Commissioner had given consideration to a person’s right to choose their residence, albeit within the confines of what was on offer under the housing assistance scheme, and that this right would be given effect to through the engagement process as part of the relocation.

118. I am satisfied that the Commissioner understood the substance of the right, engaged with it in the course of the decision that was made, and made appropriate provision for its operation in the initial decisions that were made, primarily through providing the avenues for the tenants to have some choice in the properties to which they would relocate.

The substance of the decisions insofar as the right to freedom of choice in residence – no finding is necessary

119. The findings above are that the decisions themselves have been found to have been legally flawed and the entire process miscarried for other reasons. Decisions involving the same properties and plaintiffs may yet be made. In those circumstances, it is not necessary to deal with the substance of the decisions that were made, and I consider it would be inappropriate to do so in circumstances where the parties may return to court following any further decisions made.

The right to protection from inhuman or degrading treatment was not engaged

120. Although the plaintiffs relied on this human right, I have accepted the submissions of both the defendants and the Intervenor that this right was not engaged in the circumstances of this case. This is essentially because the right protects individuals (relevantly here) from degrading treatment, and the conduct in this matter was executive decision-making about the use of public housing resources. That is not of itself degrading treatment, nor was it of any level of severity in the manner in which the decisions were notified or implemented which would bring it within the contemplation of s 10 of the Human Rights Act.

121. Section 10 is in the following terms: 10 Protection from torture and cruel, inhuman or degrading treatment etc (1) No-one may be— (a) tortured; or (b) treated or punished in a cruel, inhuman or degrading way. (2) No-one may be subjected to medical or scientific experimentation or treatment without their free consent.

122. At the time of the incidents, s 10(2) used the words “his or her” instead of “their”. The amendment was made by the HR Complaints Amendment Act (which came into force after this matter was heard).

The content of the right

123. The authorities dealing with the right contained in s 10 of the Human Rights Act have been dealt with in Islam (2021) at [82]-[97] and in Williams at [188]-[211]. I have drawn on the substantial body of jurisprudence discussed in those cases in extracting the following principles, focussing on the aspect of the right that was said to be relevant or engaged, namely degrading treatment: (a) What constitutes cruel, inhuman or degrading treatment is not defined in the Human Rights Act. Conduct is said to be ‘degrading’ when it is such as to arouse feelings of fear, anguish and inferiority in a victim, capable of humiliating and debasing a person: Kalashnikov v Russia [2002] VI Eur Court HR 93 (Kalashnikov) at [95]. The right is concerned with the deliberate imposition of severe suffering: Certain Children at [163]. (b) Not every finding that conduct was cruel, inhuman or degrading will amount to a contravention of the Human Rights Act. What is required is an assessment of the severity of the conduct, with a minimum or threshold level of severity required before it will be found to contravene the Human Rights Act: Islam at [87] and [99]; and Kalashnikov at [95], cited in Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 at [158] per Mossop AsJ (as his Honour then was). That principle was subsequently referred to as being well-established in Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22 at [74]. (c) Degrading treatment involves more than the usual element of humiliation which follows from the very fact of being convicted and punished by a court: Tyrer v United Kingdom (1980) 26 Eur Court HR (ser A) at [30] and [33]; and T v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No 24724/94, 16 December 1999) at [69].

124. As to the assessment undertaken by the court as to whether a particular threshold of severity has been met, that is a relative assessment, in that it depends on all the circumstances of the case. Without limitation, the type of considerations that may inform the assessment include the “duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim”: Ireland v The United Kingdom (1978) 25 Eur Court HR (ser A) at [162], cited in Knight v General Manager, HM Prison Barwon [2017] VSC 135 (Knight) at [25]; and Novoselov v Russia (European Court of Human Rights, First Section, Application No 66460/01, 2 June 2005) (Novoselov) at [39].

125. Other factors a court may take into account include: the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it; the context in which the ill-treatment was inflicted (such as an atmosphere of heightened tension and emotions); and whether the victim was in a vulnerable situation: Nicolae Virgiliu Tănase v Romania (European Court of Human Rights, Grand Chamber, Application No 41720/13, 25 June 2019) (Tănase) at [121]. Although the context is important, a victim’s behaviour is not usually relevant of itself: Novoselov at [38].

126. The minimum level of severity usually involves actual bodily injury or intense physical or mental suffering, although treatment that humiliates or debases an individual and is capable of breaking an individual’s moral and physical resistance may also suffice: Tănase at [118].

127. A lack of intention to humiliate or debase a person may be a factor to be taken into account, albeit any lack of intention will not be determinative in ruling out a breach of the human right: Kalashnikov at [101]. The case of Kalashnikov was considered in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [19], although that was a decision where degrading treatment was expressly defined in s 5(1) of the Migration Act 1958 (Cth), with the definition including intention as an element.

128. The principle that a lack of intention is relevant but not determinative has been expressly referred to in this court: see Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 at [94], citing Cenbauer v Croatia [2006] III Eur Court HR 261 at [43]-[44].

129. Conduct that is otherwise legitimate treatment or punishment does not contravene the right, even though there may be a degree of inevitable humiliation connected with the treatment: Wainwright v United Kingdom [2006] X Eur Court HR 223 (Wainwright) at [41], discussed in Knight at [25]. Examples of legitimate treatment that does not contravene the right might be the lawful deprivation of liberty and the consequent loss of privacy, or the conducting of a strip search carried out with due respect for human dignity and for a legitimate purpose.

130. Before treatment will be found to be in breach of the human right in question, the suffering and humiliation involved must go beyond that connected with a given form of legitimate treatment or punishment: Novoselov at [38]. However, even when official conduct does go beyond legitimate treatment, and does not accord with “rigorous adherence to procedures and all due respect to [a prisoner’s] human dignity” (Wainwright at [44]), that may not necessarily amount to conduct that is ‘degrading’.

131. Similarly, official conduct which is excessive or disproportionate also does not necessarily contravene the right: see Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 at [697] and the examples there-cited, which included the excessive use of pepper spray by police or handcuffing a person for a court appearance.

The conduct involved here was not degrading treatment

132. I have explained the concept of degrading treatment in some detail in order to demonstrate why this human right was not engaged, certainly not to any level of severity that would bring the decisions here or the decision-making process within s 10 of the Human Rights Act.

133. It is well appreciated that the decisions themselves may have made each plaintiff feel violated, in being told that they would be stripped of their homes. The decision-making process may also have made the plaintiffs feel degraded in that they were not being listened to and their personal concerns were met with responses about redevelopment yields and plans for turning their home into townhouses having already been lodged.

134. I also accept that the effect of each decision was that each of these plaintiffs may have experienced ongoing fear, anguish and inferiority at the prospect of losing her home.

135. However, such feelings were really the result of understanding the consequence of the decision. The decision itself to redevelop public housing and to include the subject properties as part of that strategy regardless of who was living in them and their personal circumstances was not degrading treatment of itself. As it has transpired, the decision and the decision-making process have each been found to be unlawful, but even then, they do not amount to directly (albeit unintentionally) treating the plaintiffs in a degrading manner, in the sense discussed in the authorities above.

136. As I have not found that the right under s 10 was relevantly engaged, it was not a right to which a decision-maker was required to give proper consideration.

The right to enjoy culture and maintain cultural and kinship ties (third plaintiff only) was engaged and was not given proper consideration

137. This right was engaged in respect of the third plaintiff only because she is a Kamilaroi woman. Her evidence was that she had a connection to the land on which she lived and that she practised her culture from her place of residence, including the family connections maintained at that location. I have accepted that evidence in what follows.

138. Section 27 of the Human Rights Act is in the following terms: 27 Cultural and other rights of Aboriginal and Torres Strait Islander peoples and other minorities (1) Anyone who belongs to an ethnic, religious or linguistic minority must not be denied the right, with other members of the minority, to enjoy their culture, to declare and practise their religion, or to use their language. (2) Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right— (a) to maintain, control, protect and develop their— (i) cultural heritage and distinctive spiritual practices, observances, beliefs and teachings; and (ii) languages and knowledge; and (iii) kinship ties; and (b) to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued.

139. Once again, the section previously used gendered pronouns which have now been replaced.

Culture heritage and distinctive spiritual practices

140. The words of s 27 are directed to ensuring that a person’s enjoyment of their culture is not denied and to recognising (in s 27(2)) that for Aboriginal people (relevantly here), maintaining cultural heritage, observances, beliefs and teaching is an aspect of that cultural right. The concept of culture is not defined in the Human Rights Act, but as submitted by the Intervenor, it is central to the right and embraces the entitlement of Aboriginal people to maintain their traditional ways of life, including their unique relationship to land and natural resources.

141. The scope of this right includes: (a) The right to participate in what may be described as cultural practices: Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), 50th sess, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994); and (b) The maintenance of ties with a person’s community and preservation of the person’s identity: Brown v Director-General of the Justice and Community Safety Directorate [2021] ACTSC 320; 364 FLR 155 at [124], [163]. An appeal from that judgment was dismissed: Brown v Director General of the Justice and Community Safety Directorate [2023] ACTCA 15.

142. The concept of culture is not static, but may evolve over time: Human Rights Committee, Views: Communication No. 511/1992, 52nd sess, UN Doc CCPR/C/52/D/511/1992 (11 June 1992) (‘Lӓnsman v Finland’) at [9.3]. In a broader context where Aboriginal people have been historically displaced and are seeking to practise their culture in different ways, that may be significant.

The engagement of the right here

143. The defendants argued that the right was not engaged because the third plaintiff was not located on her ancestral country (because she was a Kamilaroi woman living on Ngunnawal land). It was argued that the third plaintiff’s evidence rose no higher than that she has a deep connection to her home and its garden and considers it to have a beneficial impact on her health and wellbeing.

144. I have rejected that submission because the words of s 27 of the Human Rights Act do not distinguish between Aboriginal people who have a cultural connection to land by virtue of ancestral country and those who have attempted to enjoy their cultural rights through establishing connection to land. Although in a different factual context, a similar point was made about the wording of the provision in the Victorian Charter in Clark-Ugle v Clark [2016] VSCA 44 at [143], where it was stated that the relevant provision: … does not, and does not purport to, distinguish between Aboriginal persons who live on the land with which they have a connection under traditional laws and customs and other Aboriginal persons who do not live on the land with which they have a connection under traditional laws and customs, but whom maintain a distinctive spiritual, material and economic relationship with that land nevertheless.

145. It is not the case that an Aboriginal person’s cultural rights are only engaged when they reside on land to which their mob has an ancestral cultural connection. The point is that they are entitled to practise their culture, which includes a unique connection to land, wherever they live. In the circumstances of this case, the evidence was sufficient to establish that the third plaintiff had maintained and practised her culture on the land which she viewed as her home. That was enough to engage the right.

Proper consideration was not given to the right

146. In circumstances where no procedural fairness was given in relation to the initial decision, the third plaintiff’s circumstances were unknown at the time the Commissioner made the decision. It cannot be said that proper consideration was given to s 27 of the Human Rights Act in respect of this specific individual, the third plaintiff.

147. Further, and unlike the position with regard to other human rights discussed above, I was not satisfied here that the Commissioner generally understood the substance of the right engaged in respect of the third plaintiff (even as a potential class of people affected by the decision being made) or that the right might be engaged for particular tenants, with appropriate provision being made for consideration at a later point in time in the process. Remembering that this was an unreviewable decision, the evidence did not establish any appreciation of the engagement of the right, even at a macro level, at the time such decision was made.

148. Accordingly, I am satisfied that the Commissioner did not give consideration that was proper to the third plaintiff’s cultural rights in the process of making the initial decision. That is sufficient for the third plaintiff to succeed in respect of establishing that the decision was unlawful in respect of s 27 of the Human Rights Act.

149. Again, as to the substance of the decision that was made, and the question of any incompatibility of the conduct with s 27, it would be inappropriate to make findings in circumstances where the parties may return to court following any further decisions made.

Declaratory relief on the human rights claims is appropriate

150. I have dealt with the principles concerning declaratory relief generally above. In the human rights context, as discussed in Islam (2018) at [73] and the cases there-cited, the determination of appropriate relief requires a balancing process guided by four objectives: (a) Addressing the wrong occasioned by the contravention of the Human Rights Act that has been established; (b) Deterring future violations; (c) Making an order that can be complied with; and (d) Ensuring fairness to all those who might be affected by the relief.

151. Because the Human Rights Act is directed to protecting human rights, where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end: see Islam (2018) at [71] and the cases there-cited. Past infringements of human rights may give rise to declaratory relief even without other legal consequences: Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627 at [21].

152. The process miscarried for these plaintiffs, but the defendants did not concede that it had done so in terms of any failure to give proper consideration to their human rights. Declaring that to be the case will address the wrong occasioned and, in my view, deter future violations. I also consider that there is a public interest in the observance of the requirements of the Human Rights Act in the exercise of the relevant decision-making powers, particularly where the nature of the decision is expressly non-reviewable. That only increases the importance of ensuring that proper consideration is given to the human rights of those affected by a decision at the outset.

153. Otherwise, to the extent that injunctive relief was pursued, any such relief is inappropriate given that the decisions will be set aside and the Human Rights Act will continue to apply to any future decisions in respect of these tenancies. I accept the defendants’ submission that no order should be made under s 40C of the Human Rights Act that would have the effect of fettering any future (lawful) exercise of the Commissioner’s powers.

Costs on the human rights claims

154. As stated above, the parties were agreed that the Commissioner would pay the plaintiffs’ costs up to 6 June 2023, which was not limited to the costs of the judicial review proceeding.

155. The plaintiffs have succeeded in substance in respect of their human rights claims, although not to the full extent claimed. Applying the discretionary principle that costs ordinarily follow the event, my preliminary view is that the plaintiffs are also entitled to their costs of the proceeding after 6 June 2023. If no party wishes to argue to the contrary, then that will become my final view.

156. However, the orders will provide an opportunity to hear the parties as to any other costs orders that should be made in light of the court’s findings.

Orders

157. For the reasons above, the following orders are made: (1) The time in which the proceeding may be brought by the first, second and third plaintiffs is extended to 26 October 2022. (2) The Court declares that: (a) The decisions referred to in Schedule A are invalid and of no effect due to the Commissioner failing to afford procedural fairness to the plaintiffs when exercising the power prescribed in cl 28(2) of the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) (ACT). (b) The decisions in Schedule A failed to give proper consideration to a relevant human right in respect of each plaintiff, namely the right to protection from unlawful or arbitrary interference with each plaintiff’s home. (c) The decisions in Schedule A insofar as they applied to the third plaintiff failed to give proper consideration the plaintiff’s cultural rights. (3) The decisions set out in Schedule A are set aside. (4) Subject to Order 5: (a) The Commissioner is to pay the plaintiffs’ costs of the proceedings; and (b) The Intervenor is to pay her own costs. (5) If any party wishes to seek a different costs order and notifies the court within seven days of the making of these orders, then Order 4 is stayed and the Court directs: (a) The parties to file any submissions and evidence on costs on or before 13 February 2026; (b) Any submissions and evidence in reply on the question of costs to be filed on or before 23 February 2026; and (c) That the question of costs will be determined on the papers unless any party notifies the court that a further oral hearing is sought by 27 February 2026. Schedule A 1. The decisions pursuant to cl 28(2) of the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) (ACT) in respect of the properties tenanted by the first, second and third plaintiffs. 2. The decision in respect of the first plaintiff refusing an exemption, made on 8 March 2022 and again on 16 June 2022, and notified at the correct address on 11 July 2022. 3. The decision in respect of the second plaintiff refusing an exemption, made on 14 July 2022, and notified on 26 July 2022.

I certify that the preceding one hundred and fifty-seven [157] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: