Daniel Stubbs is CEO of Inner Melbourne Community legal.
It’s time to expand the Victorian Charter of Human Rights and Responsibilities, writes Daniel Stubbs.
The veil of ignorance is an idea proposed by philosopher John Rawls to help think about how laws should be designed. According to this idea, law-makers would operate from a position of hypothetical ignorance: imagining that they have no knowledge of what their social status will be in the society governed by the laws they enact. No idea whether they’ll be born into the most advantaged or disadvantaged circumstances, or what resources and privileges they’ll have.
It seems clear that from behind the veil of ignorance we would wish to extend basic economic, social and cultural rights to all Victorians, in the knowledge that the most vulnerable and disadvantaged citizens could easily be us. These rights should be enshrined in the Victorian Charter of Human Rights and Responsibilities.
At Inner Melbourne Community Legal (IMCL), we recognise that our work is not just about access to justice. More broadly, it’s about trying to provide fairness for vulnerable people in Melbourne. This extends what we do from advocating simply for civil and political rights (e.g., access to the justice system) to social and economic rights such as access to housing, health care, disability services and education. We do this by working closely with partner organisations – including hospitals, homelessness services and schools – because this is where vulnerable people are and this is how we can assist people to fairly participate in society. However, our clients do not enjoy such economic and social rights as inalienable human rights, and I believe this is a problem for all Victorians.
The need to include economic rights like housing in the Charter has been well researched and evidenced by judges, community lawyers, academics and social researchers. Civil and political rights alone are relatively unimportant if you have no home, can’t get support relating to your mental illness or need assistance to escape family violence. It is the ability to have these basic needs met that enables vulnerable people to participate in the community.
I was fortunate to be involved in lobbying for and developing the ACT Human Rights Act (2004). In this process, as well as in the development of the Victorian Charter, consultations made clear that the majority of the community felt that economic and social rights should be a necessary inclusion. However, those who control (or feel responsible for) economic and social programs were horrified at the idea of entrenching social and economic rights – from the look of fear in their eyes we might have been proposing to usher in the fiscal apocalypse.
As IMCL spends a lot of energy assisting people experiencing or at risk of homelessness, and given that housing is a profound and increasingly unmet need in Melbourne in particular, I will focus on this area as a key example of an economic and social right that should be provided for in The Charter.
When some of the most vulnerable Victorians are at risk of homelessness, the only way our Charter can assist them is if there have been procedural errors; people have no intrinsic or substantive right to a home.
In a number of cases (for instance, Director of Housing v KJ  and Maiga v Port Phillip Housing ), decision-makers have been found to have acted fairly when evicting people from public or community housing. Community lawyers must consider themselves fortunate when the public landlord has been procedurally careless, allowing a stop or stay of eviction.
Recently there was even a case in which the Tribunal weighed up the burden on the Office of Housing against the impact on someone being evicted and found against the tenant (Alsindi v Director of Housing ). Although the tenant sought to retain a tenancy under Section 13, which provides for the right to non-interference with home and family, the Tribunal had to ask whether infringing on these rights (and making the tenant homeless) was justified. Given the responsibility of the Office of Housing to manage a long waiting list, the Tribunal found in favour of the government authority.
The fact that our society cannot provide better for some of the most vulnerable Victorians illustrates the need for a clear Charter statement of the right to housing.
Civil and political rights are arguably luxuries compared with economic, social and cultural rights. Having returned to Melbourne in 2015 after 20 years away, I am surer than ever that provisions like housing, quality health care, education and disability services are rights that we as Victorians should be proud to enshrine.
In recent budgets the Victorian Government has pledged to provide significant increases to public and community housing, making up for the dearth of investment in stock over the last two decades. Governments don’t like entrenching rights to the most basic of provisions. But any fear that allowing for social and economic rights would pave a path to the state’s economic ruin has no basis in fact: well-researched findings have indicated that reducing inequality has significant economic and social benefits, outweighing the marginal costs.
In extending Victoria’s Charter, politicians and treasury boffins need not fear hordes of homeless people marching into the Supreme Court. However, with the inclusion of economic and social rights, the Government may see vulnerable people, their organisations and the organisations that serve them reminding decision-makers that access to housing, health, education and disability services are human rights. Instead of seeking to persuade politicians and bureaucrats of the need for these things on a moral basis, we would be reminding decision-makers and courts simply not to make or interpret laws that undermine our rights to some important basic features of being a Victorian.