The Australian film The Castle was quoted in a recent Supreme Court decision. Photo: Working Dog.
An ACT Supreme Court judge quoted a famous line from the classic Australian film The Castle when finding the ACT Commissioner for Housing breached the human rights of three public housing tenants.
Justice Verity McWilliam, in her recently published decision, said the three tenants lived in public housing in Canberra for between 27 and 42 years before they were ordered to transfer to another public housing dwelling. They all challenged these decisions, arguing they were unlawful.
“Although the plaintiffs were renting, that did not change the fact that they had become very established in, and attached to, their homes,” Justice McWilliam said.
She said the tenants were told to move under the ACT Growing and Renewing Public Housing Program, a policy intended to expand public housing by using proceeds from the sale of existing properties or by redeveloping those sites.
The crux of the dispute was whether the commissioner could lawfully force the tenants’ relocation.
“It need hardly be said that any interference with one’s home must be lawful,” the judge said.
“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.'”
Justice McWilliam said the commissioner conceded the tenants had been denied procedural fairness in the initial decisions to require them to move.
She said there had been insufficient consultation with the tenants regarding this initial decision. This suggested there was no consideration of their human right to freedom from unlawful or arbitrary interference with their homes.
The judge also found that cultural rights had not been properly considered in relation to one of the tenants, a Kamilaroi woman.
While this woman lived on Ngunnawal land, she said she had a connection to the land on which she lived and practised her culture from her home, including maintaining family connections.
“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,” Justice McWilliam said.
“The point is that they are entitled to practise their culture, which includes a unique connection to land, wherever they live.”
The judge found the decisions to move the tenants were unlawful for failing to afford procedural fairness and for failing to give proper consideration to their human rights.
She ordered the commissioner to pay the tenants’ legal costs.
Sangeeta Sharmin, a partner at Ken Cush & Associates, the firm that represented the tenants, said the court’s decision underscored the fundamental obligation of government officials to act lawfully and to give proper consideration to the Human Rights Act.
“Our clients should never have been met with the level of resistance and disregard shown by ACT Housing in the context of a program that was, from its inception, deeply flawed,” she said.
“The judgment carries significant precedential value in its discussion of the right to be protected from unlawful or arbitrary interference with one’s home and, importantly, in its consideration of governmental interference with cultural rights – an area in which judicial guidance has long been needed.”
One of the tenants, Yvette Van Loo, said the successful outcome was a great relief.
“The tense last five years since ACT Housing have tried to remove me have taken their toll in my life and on my health,” she said.
“I am extremely grateful to Ken Cush & Associates for their dedication, hard work and efficiency.
“But what I really want to add is that this situation should never have been allowed to arise. People in charge should be capable, well-educated, and simply do their job.”
ACT Human Rights Commissioner Dr Penelope Mathew said this case highlighted the need for properly funded, ongoing human rights education for all public servants.
“Government decision makers need to understand their legal obligations to consider and respect the human rights of all Canberrans,” she said.
