If you live in public housing, what rights do you have to stay in your home?

Around 544,000 people live in public housing in Australia. And there’s huge demand for more: 169,000 households are waiting for public housing, up almost 10% from a decade earlier.

But what happens when a state government decides to move public housing tenants? Do tenants have any legal rights to stay?

Several court cases – including a new High Court appeal for Melbourne tenants, and an unexpected win for three Canberra tenants – show how some people are challenging their relocation when laws aren’t properly followed.

How 3 tenants fought and won

Earlier this month, three public housing tenants in the Australian Capital Territory had a rare win, stopping them being relocated against their wishes. The women had each lived in their home for around 30 to 40 years.

The ACT Supreme Court found the territory’s social housing commissioner had denied the women procedural fairness and failed to consider their rights under the territory’s Human Rights Act. All public bodies in the ACT must properly consider human rights when making a decision.

Justice Verity McWilliam’s judgement quoted iconic Australian movie The Castle, as well as Roman philosopher Cicero:

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.”

A precedent, with another case to come

Procedural fairness means a person has a right to be heard by a government decision-maker before a decision affecting their interests is made.

The ACT Supreme Court found the commissioner had not consulted with the tenants or taken their personal circumstances into account. This breached the tenants’ right to a home, as well as the rights of an Indigenous tenant to maintain community ties and cultural practices.

Crucially, it wasn’t just a temporary win: as ABC News reported, the three women are still in their Canberra homes today and will not be relocated.

The tenants’ solicitor Sangeeta Sharmin said the judgement set a precedent, “acknowledging that our clients’ houses are not mere assets, but homes”.

Looking ahead, another group of ACT social housing tenants are taking their class action to the Federal Court, responding to the ACT government’s unsuccessful push to move them from their homes. No date has been set for that hearing.

Melbourne tenants appealing to the High Court

A similar case has been playing out in Melbourne’s inner north.

Homes Victoria is seeking to relocate around 10,000 residents of 44 public housing blocks to redevelop the properties with new social and public housing.

But last Thursday, a Victorian court made orders preventing about 32 households from being evicted from three almost empty Melbourne public housing towers, pending an appeal to the High Court. The towers are due to be demolished and Homes Victoria has warned the delays will cost millions of dollars.

Inner Melbourne Community Legal tenancy lawyer Louisa Bassini told the ABC the court injunction was a win for tenants:

It means that they can stay in their homes, see this process through, and make sure that the courts have had a proper opportunity to consider […] whether their rights [under Victoria’s human rights charter] were properly considered.

Public housing rights across Australia

Private and public landlords are entitled to evict tenants when they intend to sell or demolish the premises. But public landlords have additional policies requiring them to help tenants locate alternative premises, either in public housing or in the private market, and to assist with moving costs.

In the case of redevelopment, tenants may be entitled to return to the redeveloped property. However, this depends on them meeting eligibility criteria, having no outstanding debts, and suitable properties being available.

In Victoria, for example, tenants are offered two properties before a notice to vacate is given. Following this, Homes Victoria may seek a possession order which evicts the tenant.

Western Australia, the Northern Territory and South Australia have similar relocation guidelines to Victoria. However, they don’t have their own human rights laws.

In Tasmania, there are no published guidelines regulating relocation, despite research showing how difficult that relocation process can be.

Victoria, the ACT and Queensland have human rights laws in place that protect the right to non-interference with the home, and cultural rights. Public bodies, such as housing authorities, are obliged to properly consider these rights when making decisions.

Over coming months, we’ll see if the High Court agrees to hear the Melbourne tenants’ appeal, as well as the outcome of the ACT social housing tenants’ case in the Federal Court.

But the recent ACT Supreme Court decision offers some hope for public tenants. If state and territory governments want to relocate tenants, they must follow their own laws and policies properly – or risk costly legal challenges.