ACT Uphold the Rights of Public Housing Tenants to Live in Their Established Homes

The ACT Supreme Court recently delivered an extraordinary ruling that provides long-term public housing tenants who face eviction and transfer to other dwellings with the right to remain in their homes of up to 27 to 42 years, as they would otherwise be denied procedural fairness and their basic human rights.

Delivered on 30 January 2026 in respect of hearings over 13 to 14 July 2023, the judgment by ACT Justice Verity McWilliam was in respect of tenants Katarina Hubzin, Yvette Van Loo and Faye Irwin. It involved two complaints against the ACT Commissioner for Housing being consolidated, after having been first considered by the Australian Human Rights Commissioner as per standard rights process.

The tenants involved were being moved due to the ACT Growing and Renewing Public Housing Program, which sought to sell off public housing to reinvest in and expand it. At the heart of the dispute, was the fact that these tenants are in the later stages of their lives and despite their renting status, it was considered they were well established in their homes and moving would be a burden.

“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,” her Honour explained in her final findings. And the ruling in the tenants’ favour was secured due to the protections contained in the Human Rights Act 2004 (ACT)(HRA).

So, in a nation long buoyed down by a housing affordability crisis, which has been coupled with a long-term policy of major party politics refusing to guarantee the rights of constituents in law at all levels of government, the significance of the precedent set by the ACT courts on the back of the protections contained in the capital territory’s HRA to establish tenants’ right cannot be downplayed.

Procedural fairness denied

In opening her findings, Justice McWilliam referred to then UK parliament MP Sir William Blackstone having, in the 1769 Commentaries on the Laws of England, cited the sentiment of Roman statesman Cicero, in recognising the sanctity of a person’s home, when asserting that “the law of England has so particular and tender a regard to the immunity of a man’s house” that it considers it their “castle”.

The ACT housing commissioner conceded that there had been a denial of procedural fairness, when it notified the tenants that they were being required to transfer. Also known as natural justice, procedural fairness is a common law principle that requires decision-makers must provide those affected in a legal issue with notice about the potential decision and a right to appeal it.

Therefore, the need for a legal review was conceded by the defendant. Although, her Honour noted that procedural fairness denied was too made out by the evidence put forward. And as the three plaintiffs had been denied their basic ability to be heard, because they were initially contacted with a final decision, then “an entitlement to a declaration of invalidity naturally” followed.

Her Honour explained that in recognising a “decision affected by jurisdictional error is not decision at all” doesn’t mean it results in a “decision having no consequences whatsoever”, as this will depend on the “statutory context”. However, it was considered that declaratory relief was required both due to concession and evidence, and this then extended to the defendant covering the plaintiffs’ costs.

Human rights considerations

In terms of protected rights, the plaintiffs raised section 40C of the Human Rights Act, as it requires that if a public authority has acted incompatibly with a human right, the individuals violated by this can then start a proceeding in the Supreme Court.

Several human rights were then identified as affected by the decision: freedom from degrading treatment under subsection 10(1)(b) of the HRA, freedom from unlawful or arbitrary interference with privacy, and family and home, under subsection 12(a), and a person’s freedom to choose their residence, which is contained in section 13 of the HRA.

Further, the third plaintiff also raised their Aboriginal cultural and kinship ties having been contravened, which are protected under section 27 of the HRA.

A final ground was raised late in 2023, in respect of the authorities having undermined each plaintiff’s’ human rights by failing to considered their rights in decision-making, as per section 40 of the HRA.

But this ground was denied after the defendant contested its late addition, and her Honour found that the issues it triggered were already covered via the other grounds raised and therefore, the contention should be dropped.

Rights protections in action  

Justice Verity asserted that the right to unlawful or arbitrary interference with one’s home, under section 12 of the HRA, was central to the case. Her Honour underscored that decisionmakers had not considered the right, so the process was flawed.

In terms of the right, she further found the concept of home is autonomous and not dependent on lawfulness of occupation and so too is the idea of interference a straightforward concept, which is involved when attempting to remove someone from their home without consent.

“An unlawful interference is one which infringes an applicable law, while an arbitrary interference extends beyond conduct which is unlawful,” her Honour noted. “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.”

The right to unlawful or arbitrary interference with one’s home was undermined as no consideration was given to it.

In terms of the section 13 right for ACT constituents to choose their residence, Justice McWilliam explained, it is invoked when someone else attempts to choose where another person should reside. This aspect of the right does not make such decisions made by others always a violation when issues such as guardianship and requirements that certain people live in specific areas are considered.

That right had been undermined in this case, however, even though the authorities were making decisions for constituents and there awas no special requirement deeming this permissible, as her Honour found that the right had not been undermined via this process, as in fact the commissioner, had recognised the right to choose tenancy, and had consulted the tenants on where they might live.

The next right raised, section 10’s freedom from degrading treatment, was found not to have been breached either, because degrading treatment involves “suffering and humiliation” above and beyond “legitimate treatment or punishment”, and the treatment of the plaintiffs’ by the commissioner was not considered more extreme than its regular dealings with constituents.

As for whether the third plaintiff’s protected Aboriginal cultural and kinships ties had been undermined, the defendant argued that because the Gomeroi woman was living on Ngunnawal land, these had not been violated.

But her Honour insisted the point is rather that Aboriginal people have the right to practice their unique culture on the land that they’ve established connections with.

So, this right had too been undermined, as not residing on ancestral Country does not mean that Aboriginal people have not developed their unique cultural practices on the land on which they live today.

Basic tenants’ rights upheld  

The plaintiffs sought declaratory relief, which is a legally binding court statement setting out rights, obligations and legal relationships.

On 30 January 2026, Justice McWilliam declared that the decision to evict the three plaintiffs was invalid, as it did not involve procedural fairness, and its outcome had undermined protection from unlawful or arbitrary interference with a person’s home in terms of all three plaintiffs, whilst the third plaintiff had also had her Aboriginal cultural and kinship rights violated.

Her Honour further ordered that the defendant pay the plaintiffs’ court costs, whilst the plaintiffs have been allowed to remain in their homes.